Legal malpractice has the unique “but for” proximate cause elements not found in other tort claim analyses, and it frequently is the reason why cases are dismissed at a higher rate (on CPLR 3211 motions) than is seen in other professional negligence claims. Med mal claims, as an example, are rarely dismissed pre-answer.

“The plaintiff commenced this action to recover damages for legal malpractice against the defendant law firm. The plaintiff alleged that she retained the defendant to represent her in a personal injury action that she commenced against, among others, the City of Long Beach (hereinafter the underlying action). The plaintiff allegedly appealed from an order in the underlying action that, inter alia, granted the City’s motion for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff alleged that due to the defendant’s deficient representation, the appeal was never perfected and was ultimately deemed dismissed. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint in this action. In an order entered July 17, 2023, the Supreme Court granted the defendant’s motion. The plaintiff appeals.”

“”‘To state a cause of action to recover damages for legal malpractice, [a] plaintiff [*2][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 plaintiff to sustain actual and ascertainable damages'” (May Dock Lane, LLC v Harras Bloom & Archer, LLP, 222 AD3d 635, 637, quoting Jean-Paul v Rosenblatt, 208 AD3d 652, 653). “‘To establish causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney’s negligence'” (id., quoting Parklex Assoc. v Flemming Zulack Williamson Zauderer, LLP, 118 AD3d 968, 970). “If the alleged malpractice is based on the attorney’s failure to perfect an appeal from an order dismissing a cause of action in an underlying action, the plaintiff must show that, had the attorney perfected that appeal, the appeal would have been successful, the cause of action would have been reinstated, and the plaintiff would have prevailed on that cause of action in the underlying action” (McCluskey v Gabor & Gabor, 61 AD3d 646, 648).

Here, even accepting the facts in the complaint to be true and according the plaintiff the benefit of every favorable inference, the plaintiff cannot establish that, but for the defendant’s alleged negligence, the plaintiff would have been successful in her appeal in the underlying action (see id.). In the underlying action, it is undisputed that the City did not have prior written notice of the alleged defect that purportedly caused the plaintiff’s injuries, and the plaintiff did not sufficiently allege that an exception to the prior written notice requirement applies (see La Fleur v Janowitz, 228 AD3d 636, 638; Discepolo v County of Nassau, 226 AD3d 646, 647; see also McCluskey v Gabor & Gabor, 61 AD3d at 648).

Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint.”