Legal malpractice cases sometimes face a conundrum.  The three year statute of limitations is approaching, yet the case is not finished.  Attorney 1 (the potential target) is out, and Attorney 2 is continuing the case.  What does the careful plaintiff do? 

One solution (which requires the court agree) is to start the case and then stay the proceedings.  Another solution is to start the case and then conditionally dismiss without prejudice.  The worst solution is to start the case, proceed to trial and lose on the basis that there are not yet any damages.

So, Abraham v Viruet  2015 NY Slip Op 50005(U)  Decided on January 6, 2015  Appellate Term, First Department is an example of the third possiblity. 

"Giving due deference to the trial court’s findings of fact and credibility, we sustain the judgment awarded in favor of defendant dismissing plaintiff’s action insofar as it sounds in legal malpractice. Plaintiff’s trial showing, unaccompanied by any expert opinion testimony, failed to establish that the defendant-attorney’s representation of plaintiff in the two underlying matters "fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the [legal] profession" (see Fidler v Sullivan, 93 AD2d 964 [1983]). Moreover, in view of the continued pendency of one of the underlying actions, plaintiff did not and cannot establish any actual damages attributable to the malpractice alleged in connection with that matter (see Kahn Jewelry Corp v Rosenfeld, 295 AD2d 261 [2002])."