In order to state a cause of action to recover damages for legal malpractice, the plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages. In order to establish causation, the plaintiff must show that he would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative.
The plaintiff commenced this action to recover damages arising from the defendants' prior legal representation in connection with a purchase agreement of the plaintiff's restaurant business. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the complaint failed to state a cause of action. The motion is granted because the plaintiff's allegation that the restaurant would have had increased profits but for the defendants' alleged malpractice is conclusory and speculative.
126 Main St., LLC v. Kriegsman, NY Slip Op 03758 (2d Dep't July 13, 2023)
