Herz v London Indusi LLP 2023 NY Slip Op 33683(U) September 15, 2023
Supreme Court, Kings County Docket Number: Index No. 510794/21 Judge: Ingrid Joseph is a complicated and interesting case of accidental/medical malpractice death in a nursing home where a claim was made against the nursing home and for an accidental death insurance policy as well. Eventually, one cancelled out the other, and the attorneys who represented the estate in both cases were sued. While there was a settlement of the insurance policy claim, the med mal case was lost. Were the various attorneys negligent in how they handled the multiple cases?

The facts are too long to reproduce here. The Court eventually dismisses on “scope of the retainer” grounds as well as finding that the loss of a medical malpractice claim was too speculative.

“To state a cause of action alleging legal malpractice, a plaintiff must allege 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 the plaintiff to sustain actual and ascertainable damages (Rudolf v Shayne, Dachs, Stanisci, Corker, & Sauer, 8 N.Y.3d 438 [2007]; Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum, & Vitulli, 215 A.D.3d 699 [2d Dept. 2023]; Park/ex Associates v Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d 698 [2d Dept.2014 ]). A cause of action for legal malpractice cannot be stated in the absence of an attorney-client relationship ( Windsor Metal Fabrications, Ltd. v Scott & Schechtman, 286 A.D.2d 732 [2d Dept. 2001]). Generally, to plead causation, the plaintiff must allege that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney’s negligence (Rudolf at 442; PhilipS Schwartzman,
Inc. at 703; Park/ex Associates at 970). Furthermore, the claimed “actual and ascertainable damages” have to be clearly calculable (see Rudolph; Gallet. Dreyer & Berkey, LLP v Basile, 141 A.D.3d 405 [1st Dept.2016]). Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action (Philip S. Schwartzman, Inc. at 704; Katsoris v Bodnar & Milone, LLP, 186 A.D.3d
1504 [2d Dept. 2020}; Gall v Colon;.Sylvain, 151 A.D.3d 698 [2d Dept. 2017]).

In, Grace v. Law, 24 N.Y.3d 203 (2014]. the Court of Appeals held that prior to commencing a legal malpractice action, a party \vho.is likely to succeed on appeal of the underlying action is required to press their appeal beforehand. If the client is not likely to succeed, then they may bring a legal malpractice action without first pursuing an appeal (Id.). Consequently, a defendant in a legal malpractice action can assert that a plaintiff is now barred from bringing the action by establishing that the client failed to pursue an appeal in the underlying action, that would likely have been successful (Id.; see also Buczek v Dell & Little, LLP, 127 A.D.3d 1121 [2d Dept. 2015]).

Here, Plaintiffs have failed to plead a viable cause of action for legal malpractice. With respect to RusoKarl, Plaintiffs’ conclusory statements that the RussoKarl firm is a successor in interest to the Indusi firm is insufficient to establish an attorney-client relationship and state a claim for legal malpractice. Plaintiffs have failed to allege specific facts upon which the existence of an attorney-client relationship or
privity exists between themselves and the RussoKarl firm or establish that they would have prevailed in the underlying action but for RussoKarl’ s negligence.

Additionally, Plaii1tiffs have failed to plead actual and as.certainable damages. While Plaintiffs attach an expert affirmation and deposition testimony to support their claims that the acts of the individuals involved in the Medical Malpractice actions were negligent, Plaintiffs only state in a conclusory fashion that the Medical Malpractice action-would have resulted in monetary recovery but for Sine!, lndusi, or RusoKarl and Gerace’s negligence. Such allegations are insufficient to establish actual and ascertainable damages necessary to plead a cause of action for legal malpractice.”