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Allegation of “But For” Element of Attorney Malpractice Too Speculative

The First Department determined plaintiff had not sufficiently alleged the “but for” element of an attorney malpractice action.  Plaintiff alleged she would have won the arbitration in which the attorney represented her if the attorney had submitted certain evidence. The First Department found the allegation too speculative to support the action:

Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that “but-for” defendants’ alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset … . Plaintiff stated that if defendants had introduced her parents’ personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents’ personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel’s determination regarding the parents’ ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice … . Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker, 2014 NY Slip Op 04428, 1st Dept 6-17-14

 

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