Stinnett v Derek Smith Law Group, PLLC 2025 NY Slip Op 04677 [241 AD3d 737]
August 13, 2025 Appellate Division, Second Department is a decision which obscurely indicates what might be the underlying case, where the underlying case was against Delta Airlines and Quest Diagnostics, and the outcome was that plaintiff was fired. How might Quest and Delta be mentioned in the same breath?

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against, among others, the defendants Derek Smith Law Group, PLLC (hereinafter DSLG), and John C. Luke, Jr., who was an attorney at DSLG (hereinafter together the defendants). The plaintiff alleged, among other things, that she retained the defendants to represent her in actions against Delta Air Lines, Inc. (hereinafter Delta), and Quest Diagnostics Clinical Laboratories, Inc. (hereinafter Quest), that were either commenced in federal court or removed from state court to federal court, asserting causes of action alleging, inter alia, employment discrimination, based on gender, sex, and disability, and common-law negligence. The plaintiff also alleged that due to the defendants’ negligent representation, the complaints in the underlying federal actions were dismissed. The defendants moved pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against them. In an order dated August 16, 2023, the Supreme Court granted the motion. The plaintiff appeals.”

“Here, the cause of action to recover damages for legal malpractice failed to set forth facts sufficient to allege that the defendants’ alleged negligence proximately caused the plaintiff to sustain actual and ascertainable damages (see Buchanan v Law Offs. of Sheldon E. Green, P.C., 215 AD3d 793, 795 [2023]; Joseph v Fensterman, 204 AD3d 766, 769-771 [2022]). The plaintiff’s allegations that but for the defendants’ alleged negligent representation her claims would have been viable and she would have received a more favorable outcome in the underlying federal actions were conclusory and speculative (see Alexim Holdings, LLC v McAuliffe, 221 AD3d 641, 644 [2023]; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649 [2023]). Accordingly, the Supreme Court properly determined that dismissal of the cause of action alleging legal malpractice insofar as asserted against the defendants was warranted pursuant to CPLR 3211 (a) (7).

As a general rule, where a cause of action alleging breach of contract arises from the same facts as a cause of action to recover damages for legal malpractice and does not allege distinct damages, the cause of action alleging breach of contract must be dismissed as duplicative of the cause of action to recover damages for legal malpractice (see Postiglione v Castro, 119 AD3d 920, 922 [2014]; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749 [2006]). Here, the cause of action alleging breach of contract was duplicative of the cause of action to recover damages for legal malpractice (see Dabiri v Porter, 227 AD3d 860, 861 [2024]; Lam v Weiss, 219 AD3d 713, 718 [2023]). The allegations supporting the cause of action alleging breach of contract were essentially identical to those supporting the cause of action to recover damages for legal malpractice and did not allege a distinct injury or distinct damages. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging breach of contract insofar as asserted against them.”