You are here: / / A LEGAL MALPRACTICE COMPLAINT WHICH ALLEGES CONCLUSORY AND SPECULATIVE...
, , ,

A LEGAL MALPRACTICE COMPLAINT WHICH ALLEGES CONCLUSORY AND SPECULATIVE DAMAGES WILL BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the legal malpractice complaint did not state a cause of action and should have been dismissed pursuant to CPLR 3211(a). Conclusory and speculative allegations of damages are not sufficient:

“‘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'” … . “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'” … . Here, the plaintiff failed to state a cause of action to recover damages for legal malpractice because the plaintiff’s allegation that the restaurant would have had increased profits but for the defendants’ alleged malpractice is conclusory and speculative … . 126 Main St., LLC v Kriegsman, 2023 NY Slip Op 03758, Second Dept 7-12-23

Practice Point: A legal malpractice complaint does not state a cause of action if the damages allegations and conclusory are speculative.

 

You might also like
PLAINTIFF’S EXPERTS WERE NOT QUALIFIED TO OFFER AN OPINION ON THE TREATMENT PROVIDED BY DEFENDANT MEDICAL ONCOLOGIST; THEREFORE THE EXPERTS DID NOT DEMONSTRATE DEFENDANT OWED PLAINITFF A DUTY OF CARE, A QUESTION OF LAW FOR THE COURT (SECOND DEPT).
BECAUSE THERE WAS EVIDENCE PLAINTIFF FELL OFF A BEAM IN THIS LABOR LAW 240(1) ACTION, IN ADDITION TO EVIDENCE HE TRIPPED OVER DEBRIS, THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY TO DECIDE WHETHER PLAINTIFF FELL OFF THE BEAM, MOTION TO SET ASIDE THE VERDICT IN THE INTEREST OF JUSTICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
AGREEMENT TO AGREE UNENFORCEABLE UNDER BREACH OF CONTRACT, BREACH OF COVENANT OF GOOD FAITH, PROMISSORY ESTOPPEL AND FRAUD THEORIES. 
TRIAL EVIDENCE SUPPORTED THE RULING THAT TWO FACIALLY AMBIGUOUS RELEASES EXECUTED BY PRIOR OWNER OF THE GAS STATION APPLIED TO THE CONTAMINATION OF THE PROPERTY BY LEAKED GASOLINE; THE CURRENT OWNER OF THE GAS STATION COULD NOT, THEREFORE, RECOVER THE CLEANUP COSTS FROM THE DEFENDANT GASOLINE SUPPLIER (SECOND DEPT).
THE TIP OF PLAINTIFF THIRD-GRADER’S FINGER WAS SEVERED WHEN A DOOR IN THE SCHOOL BUILDING SLAMMED SHUT; THE DEFENDANT-SCHOOL’S (DEPARTMENT OF EDUCATION’S [DOE’S]) MOTION FOR SUMMARY JUDGMENT WAS PROPERLY GRANTED; THE DOOR WAS NOT DEFECTIVE, THE SCHOOL HAD NO NOTICE OF A PROBLEM WITH THE DOOR, SUPERVISION COULD NOT HAVE PREVENTED THE ACCIDENT, AND NYC IS NOT LIABLE FOR AN ACCIDENT ON SCHOOL (DOE) PROPERTY (SECOND DEPT).
BECAUSE PLAINTIFF WAS UNABLE TO SHOW THE DOCUMENTS SOUGHT FROM THE DEFENDANTS EVER EXISTED HE WAS NOT ENTITLED TO STRIKE THE ANSWER FOR SPOLIATION OF EVIDENCE, HOWEVER PLAINTIFF WAS ENTITLED TO AN ORDER PRECLUDING THE DEFENDANTS FROM INTRODUCING ANY SUCH DOCUMENTS AT TRIAL (SECOND DEPT).
ERROR IN JUDGMENT JURY CHARGE SHOULD NOT HAVE BEEN GIVEN, NEW TRIAL REQUIRED.
Collateral Estoppel Doctrine Will Not Be Invoked Unless there Has Been at Least One Full Hearing on the Issues Involved

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE APPLICATION FOR A SEARCH WARRANT WAS BASED ON INFORMATION PROVIDED BY AN... DEFENDANTS’ MOTION TO COMPEL PLAINTIFF TO ALLOW THE EX PARTE INTERVIEW...