On June 21, 2022, the First Department issued a decision in Scopia Windmill LP v Olshan Frome Wolosky LLP, 2022 NY Slip Op. 03996, allowing a legal malpractice claim to go to trial based on an expert’s opinion on the hypothetical result of counsel’s inaction, explaining:
Plaintiffs assert a legal malpractice claim alleging that defendant law firm was negligent in failing to perfect a security interest by timely filing a UCC-1 financing statement in connection with a loan they made. Contrary to defendant’s contention, the allegations underlying the claim are not couched in terms of gross speculations on future events. To the contrary, supported by plausible expert opinion, they depict a hypothetical course of events flowing from the failure to file that caused plaintiffs ascertainable damage that would not have occurred had the lien been timely filed, thereby raising an issue of fact sufficient to defeat summary dismissal of the claim.
(Internal quotations and citations omitted).