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THE ALLEGATION PLAINTIFF WOULD HAVE WON HIS WORKERS’ COMPENSATION HEARING HAD HIS ATTORNEY PRESENTED EYEWITNESS TESTIMONY WAS TOO SPECULATIVE TO SUPPORT A LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice action should have been dismissed. Plaintiff alleged he would have won his Workers’ Compensation hearing had his attorney presented the testimony of alleged eyewitnesses to his alleged fall from a ladder. The claim that, “but for” the attorney’s negligence, the plaintiff would have won the hearing was deemed too speculative:

“To establish causation in a legal malpractice action, ‘a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence'” … . “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” … .

… The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory … . Denisco v Uysal, 2021 NY Slip Op 04118, Second Dept 6-30-21

 

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