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Failure to Link Specific Monetary Loss to Acts or Omissions of the Attorneys Required Dismissal

The Second Department determined plaintiff’s legal malpractice action should have been dismissed because the plaintiff did not demonstrate a specific monetary loss was proximately caused by the negligence of the attorneys. Plaintiff alleged the attorneys failed to ensure that a note, guarantee and mortgage were enforceable against Nina, who disaffirmed liability on the ground of legal incapacity:

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages … . To establish causation, the plaintiff must 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” … .

…The plaintiff failed to demonstrate the amount it could or would have collected if the note, the guaranty, and mortgage had been enforceable against Nina … . In addition, the plaintiff failed to demonstrate that it was unable to recover the amounts due under the note by other legal means available to it under the terms of the note and guaranty, or that it was unable to obtain equitable relief from Nina even after she disaffirmed liability on the ground of legal incapacity (see Restatement [Second] of Contracts § 14, Comments b, c; see also Restatement of Restitution § 139). Since the plaintiff failed to demonstrate the extent to which it would have been unable to enforce the note and the guaranty after it was disavowed by Nina, and the precise extent to which it would have been able to recover had the note, the guaranty, and the mortgage been enforceable against her, the plaintiff failed to establish, prima facie, that any negligence on the part of [the attorneys] was a proximate cause of actual and ascertainable damages … . Quantum Corporate Funding, Ltd. v Ellis, 2015 NY Slip Op 02104, 2nd Dept 3-18-15

 

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