Gopstein v Bellinson Law, LLC 2023 NY Slip Op 33476(U) October 4, 2023
Supreme Court, New York County Docket Number: Index No. 159060/2022
Judge: Mary V. Rosado is an example of what courts fear in the legal malpractice field: metastasizing suits, each based upon the earlier suit. The rule of privity surely exists to stop the otherwise inevitable suit against your opponent’s attorney right after the end of the underlying case. Here, a personal injury case is followed by a permissible case against the attorneys who litigated it, and then a case against the new attorneys who came in to settle the legal malpractice case.

” To state a cause of action for legal malpractice, in addition to an attorney-client
relationship, the complaint must set forth “the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Leder v Spiegel, 31 AD3d 266 [1st Dept 2006]). Further, the Appellate Division, First Department has held that “[a] claim for legal malpractice requires that a plaintiff allege facts that, if proven at trial, would demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages”‘ (Kaplan v Conway & Conway, 173 AD3d 452 [1st Dept 2019] quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2017]). Further, in order to survive a motion to dismiss under CPLR 321 l(a)(7), “the complaint must show that but for counsel’s alleged malpractice, the plaintiff
would not have sustained some actual ascertainable damages” (Pellegrino v File, 291 AD2d 60 [1st Dept 2002]). “Conclusory damages … or injuries predicated on speculation cannot suffice” for a legal malpractice claim (Pellegrino at 64). “[A] failure to establish proximate cause required dismissal. .. regardless [ofJ whether negligence is established (Id. at 63).

Accordingly, in order to plead successfully a cause of action for legal malpractice, Plaintiff must plead, in non-conclusory fashion, that but for Defendants’ alleged negligence Plaintiff would have succeeded in the prosecution of both the Underlying Malpractice Action and the Underlying Personal Injury Action. The Court finds that Plaintiff has failed to do so. Without providing any basis whatsoever for the $160,000.00 claimed in damages on each of his causes of action, Plaintiff’s Complaint inartfully alleges, in conclusory fashion, that Defendants’ negligence and malpractice was the proximate cause of the damages sustained by Plaintiff (NYSCEF Doc. 2 at if40). Such conclusory damages predicated on speculation are insufficient to satisfy the pleading standard for a legal malpractice claim (Pellegrino at 64). Accordingly, Defendants’ motion to dismiss Plaintiff’s legal malpractice claim is granted.”