Sometimes what appears to be a clear and convincing description of a mistake by an attorney fails to elicit approval from Supreme Court or from the Appellate Division.  One reads the introduction to a decision, and it’s almost -wham- “that sounds like a real departure”.  Then you read the balance of the decision, and the Court is unmoved.  So, Barouh v Law Offs. of Jason L. Abelove
2015 NY Slip Op 06770  Decided on September 16, 2015  Appellate Division, Second Department and Barouh v Law Offs. of Jason L. Abelove   2015 NY Slip Op 06769  Decided on September 16, 2015  Appellate Division, Second Department tell a complete story of what the Courts thought was a speculative claim.

The facts are simple.  Plaintiff hired defendant attorney to represent him when he sued a corporation.  Plaintiff won the first case.  After the case, the attorney did some work for the corporation.  Somewhat later Plaintiff hired the attorney to sue the corporation again.  This time the corporation claimed that the conflict of interest poisoned the litigation.  Plaintiff had to pay legal fees but eventually won the right to sue.  He claimed the attorney did not disclose his conflict, which cost plaintiff money and time.  Good case, no?

When the court was presented with a motion to dismiss, it ended the Judiciary Law§ 487 claims but left the legal malpractice case intact.

When the Court was presented with a motion for summary judgment, it ended the case.

“To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Smith v Kaplan Belsky Ross Bartell, LLP, 126 AD3d 877). To establish causation, “a 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. at 878). “To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772 [internal quotation marks omitted]).

Here, the defendants met their initial burden of demonstrating, prima facie, that the plaintiff cannot establish that but for Abelove’s conduct, the plaintiff would not have incurred damages in defending against the BEA defendants’ motion to dismiss (see Alaimo v Mongelli, 93 AD3d 742, 744; Pistilli Constr. & Dev. Corp. v Epstein, Rayhill & Frankini, 84 AD3d 913, 914; see also Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848). In opposition, the plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). In addition, [*2]the defendants established that they were entitled to summary judgment dismissing the cause of action alleging breach of fiduciary duty, as this claim is based upon the same alleged acts of legal malpractice (see Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258, 261; Adamski v Lama, 56 AD3d 1071, 1072-1073; see also Boone v Bender, 74 AD3d 1111, 1113).

The plaintiff’s contention that the defendants’ motion for summary judgment was premature is improperly raised for the first time on appeal and, thus, not properly before this Court (see Aglow Studios, Inc. v Karlsson, 83 AD3d 747, 749).”