You are here: / / IN THIS LEGAL MALPRACTICE ACTION, THE PLAINTIFF NEED NOT SHOW SHE ACTUALLY...
, ,

IN THIS LEGAL MALPRACTICE ACTION, THE PLAINTIFF NEED NOT SHOW SHE ACTUALLY SUSTAINED DAMAGES TO SURVIVE A MOTION TO DISMISS (SECOND DEPT). ​

The Second Department, reversing Supreme Court’s dismissal of a legal malpractice complaint, noted that the plaintiff need not show she actually sustained damages to survive a dismissal motion:

The plaintiffs alleged … that they retained the defendants to represent them in an action to recover damages for personal injuries the plaintiff … allegedly sustained in a motor vehicle accident (hereinafter the underlying action) and that due to the defendants’ failures to pursue a theory based on a violation of Vehicle and Traffic Law § 509(3), the plaintiffs were not able to obtain a verdict in their favor in the underlying action. * * *

To state a cause of action to recover damages for legal malpractice, “a plaintiff must allege 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 plaintiff to sustain actual and ascertainable damages” … . “To establish causation, 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 attorney’s negligence” … . “A plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages … . “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” … . Kowalski v Gold Benes, LLP, 2024 NY Slip Op 05967, Second Dept 11-27-24

Practice Point: In this legal malpractice case, the court noted the plaintiff need not show she actually sustained damages to survive a motion to dismiss.​

 

You might also like
THE LOST NOTE AFFIDAVITS SUBMITTED BY THE PLAINTIFF IN THIS FORECLOSURE ACTION WERE INVALID; PLAINTIFF’S MOTION FOR LEAVE TO ENTER A DEFAULT JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ONE INCH DEEP DEPRESSION IN THE ROADWAY WHICH WAS SURROUNDED BY ORANGE MARKINGS WAS NOT DEMONSTRATED TO BE TRIVIAL OR BOTH ‘OPEN AND OBVIOUS’ AND ‘NOT INHERENTLY DANGEROUS’ AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Analysis Where Two or More Insurance Companies Insure the Same Risk and Insured
ABSENT SELF-INTEREST OR SELF-DEALING, AN ATTORNEY CAN NOT BE LIABLE TO A THIRD PERSON FOR INDUCING THE CLIENT TO BREACH A CONTRACT WITH THAT THIRD PERSON (SECOND DEPT).
SLIGHTLY DIFFERENT SIGNATURES ON THE NOTE AND DEFENDANTS’ DENIAL OF RECEIPT OF THE RPAPL 1304 NOTICE DID NOT RAISE QUESTIONS OF FACT; THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Evidence of Prior Crimes Improperly Admitted to Prove Identity and Intent—There Was No Unique Modus Operandi Which Would Prove Identity and Intent Could Be Inferred from the Commission of the Acts Charged
“Law of the Case” Doctrine Did Not Apply—Dismissal of Affirmative Defense Did Not Constitute Full Litigation of the Issue
ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE, ALTHOUGH THE LOCAL CODE REQUIRED THE PROPERTY OWNER TO KEEP SIDEWALKS IN GOOD REPAIR, IT DID NOT IMPOSE TORT LIABILITY ON THE PROPERTY OWNER (SECOND DEPT).

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

HERE THE AUTOMATIC DOOR AT A RESIDENTIAL FACILITY CLOSED ON THE ELDERLY PLAINTIFF;... CLAIMANT DEMONSTRATED HE HAD NOT REMOVED HIMSELF FROM THE LABOR MARKET WITH...