On May 31, 2023, the Second Department issued a decision in Floral Park Ophthalmology, P.C. v. Ruskin Moscou Faltischek, LLP, 2023 NY Slip Op. 02863, holding that a legal malpractice claim failed for lack of facts showing that the alleged malpractice caused the plaintiff’s loss, explaining:
To state a cause of action to recover damages for legal malpractice, a 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. 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. A plaintiff must also 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 and that the attorney’s negligence caused actual and ascertainable damages. A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel.
Here, the plaintiffs failed to plead that, but for the defendants’ negligence, they would have prevailed in the underlying action. To the contrary, as noted by the Supreme Court, it is uncontroverted that the plaintiffs settled the underlying action in order to avoid potential criminal liability for fraud. To the extent that the complaint alleged that the plaintiffs would have fared better at trial or in the settlement, the allegations in the complaint were conclusory and lacked factual support. The plaintiffs’ hindsight criticism of counsels’ reasonable course of action does not rise to the level of legal malpractice.
(Internal quotations and citations omitted).