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PLAINTIFF STATED A CLAIM FOR LEGAL MALPRACTICE BASED UPON THE ATTORNEYS’ ALLEGEDLY UNREASONABLE DELAYS IN PROSECUTING AN ACTION AGAINST A CONTRACTOR, RESULTING IN THE INABILITY TO COLLECT THE JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging legal malpractice should not have been dismissed. Plaintiff alleged the attorneys’ delays in prosecuting the action against a contractor resulted in plaintiff’s inability to collect a judgment against the contractor. By the time the judgment was acquired, the contractor had sold its assets and moved out of the country:

… [A]ccepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. The amended complaint alleges that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by engaging in a pattern of undue delay in their prosecution of the underlying action, including by allowing the underlying action to be marked off the active calendar on two occasions and by failing to comply with certain court-ordered deadlines. The amended complaint further alleges that the defendants’ negligence proximately caused the plaintiff to sustain actual and ascertainable damages in that their delays in prosecuting the underlying action prevented him from being able to collect on the judgment that was eventually entered against the contractor … . Contrary to the defendants’ contention, the plaintiff’s allegations relating to proximate cause, including the nature and value of the contractor’s alleged assets and when they were disposed of, were not impermissibly speculative or conclusory … . Ofman v Tenenbaum Berger & Shivers, LLP, 2023 NY Slip Op 03471, Second Dept 6-28-23

Practice Point: Here the complaint stated a legal malpractice claim based upon the attorneys’ alleged unreasonable delays in prosecuting an action against a contractor, resulting in the inability to collect the judgment. The contractor sold its assets and moved out of the country.

 

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