On August 2, 2022, the First Department issued a decision in Markov v. Barrows, 2022 NY Slip Op. 04780, holding that a legal malpractice claim failed because the plaintiff did not show how the defendants’ malpractice damaged the plaintiff, explaining:
This legal malpractice action stems from defendant’s representation of plaintiff in a prior action in which plaintiff sought to recover damages he allegedly sustained after purchasing at auction a particular medal that he asserted was worth far less than his winning bid. Plaintiff alleges that defendant failed to timely sue the proper parties — namely, Stack’s LLC and its auctioneers — leading to the dismissal of the prior action and precluding any recovery by plaintiff for alleged misrepresentations by Stack’s and the auctioneers regarding the materials comprising the medal.
Supreme Court properly dismissed plaintiff’s legal malpractice cause of action in the original complaint because he failed to allege that “but for” defendant’s negligent conduct, he would have prevailed in the underlying action. Plaintiff’s citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint.
Further, Supreme Court providently exercised its discretion in denying plaintiff’s motion for leave to amend the complaint because the claims asserted in the proposed amended complaint are devoid of merit. With respect to the underlying transaction giving rise to plaintiff’s legal malpractice action, the proposed amended complaint alleges, among other things, that plaintiff purchased a Russian military order (the medal) at an auction conducted by Stack’s and its auctioneers; that Stack’s and the auctioneers represented in the auction catalog and at auction that the medal was comprised of “brilliants,” which plaintiff claims is a term commonly understood in the numismatic trade to mean diamonds; that the medal was sealed in plastic, restricting plaintiff’s ability to inspect the medal prior to auction; that plaintiff justifiably relied on the catalog representation that the medal was comprised of brilliants in bidding on the medal, including the winning bid of $600,000; that plaintiff discovered after the auction that the medal was not comprised of brilliants, but instead was comprised of inferior materials (i.e., glass or lead crystals), drastically affecting the value of the medal; and that plaintiff suffered both direct and consequential damages because he paid significantly more for the medal than its worth.
Plaintiff could not have prevailed in the underlying action — and, therefore, cannot prevail in this legal malpractice action — because plaintiff’s fraud and breach of contract claims against Stack’s and the auctioneers would have been flatly defeated by the various disclaimers and conditions in the terms of sale contained in the auction catalog.
(Internal citations omitted).