One might think that after a loss of the underlying case, a legal malpractice action will undoubtedly be successful.  That thought is, of course, naive.  As an example. suppose you are a landlord and owner of a commercial setting who sells to buyer, who is to pay for the sale over time.  buyer disappears, and the store is left unattended.  Seller watches, then padlocks the store for safety, then later runs the business to pay for the upkeep.  Buyer later returns and sues.  Seller’s attorney defends, does not file a counterclaim, then bails out just before trial.  Seller loses the trial.  Malpractice?  US District Court says no.

In CHARL-HO PARK, v.. REIZES; 5:06-CV-0843 (GTS/GJD)UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK 009 U.S. Dist. LEXIS 117077 the court summarizes: "Plaintiff’s Complaint alleges that Defendant committed legal malpractice in the following ways: (1) he improperly advised Plaintiff of his legal rights regarding the padlocking of the premises in question; (2) he improperly advised Plaintiff of the amount that Plaintiff’s tenants needed to pay to cure a default; (3) he failed to assert affirmative defenses and counterclaims on behalf of Plaintiff in an action filed against Plaintiff; and/or (4) he breached his professional duty by abandoning Plaintiff on the eve of trial, thereby [*2] causing Plaintiff to lose that action."

"Specifically, the Court finds that whatever issue of fact may exist with regard to the padlocking incident is not material to the issue of whether Defendant breached a legal duty to Plaintiff. The Court makes this finding for two reasons.

First, whether Plaintiff notified Defendant that his wife had padlocked the area is immaterial because Plaintiff admitted in his deposition that he asked his wife to lock the store for security reasons, as opposed to locking the store for the purpose of keeping the Lees from entering. (Dkt. No. 23, Part 10, at 30-31 [Plf.’s Deposition].) Defendant properly notes that New York courts recognize a landlord’s padlocking or changing of locks as an eviction only when the landlord does so for the purpose of keeping a tenant out. 1 As a result, even assuming that Defendant owed Plaintiff a duty to advise him with regard to whether to padlock the premises in question, Defendant would have had a reasonable basis for not advising Plaintiff to remove the lock. As a result, Defendant [*7] did not breach any duty to Plaintiff with regard to the padlocking incident.

"In any event, whether or not Defendant gave this advice or calculated the amount owed (or even whether the calculation was incorrect) is immaterial to Defendant’s motion for summary judgment. This is because, just as Plaintiff has done with regard to the issue of the padlocking of the doors discussed above in Part III.A. of this Decision and Order, Plaintiff has failed to provide admissible evidence to meet the burden needed to survive summary judgment on the element of causation in his claim regarding the default claim. "

"However, even assuming that Defendant erroneously notified Plaintiff that filing a counterclaim would cost more money (rather than notifying him that it merely could cost more money and time), Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that such an error caused him any harm. "The object of compensatory damages is to make the injured client whole. Where the injury suffered is a loss of a cause of action, the measure of damages is generally the value of the claim lost." Campagnola v. Mulholland, Minion and Roe, 76 N.Y.2d 38, 42 (N.Y. 1990).."