Legal Memorandum: Elements of a Legal Malpractice Claim in NY

Issue: What elements must a plaintiff prove to establish a legal malpractice claim under New York law?

          To establish a legal malpractice claim a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community; (2) proximate cause; (3) damages; and (4) that but for the attorney’s negligence the plaintiff would have recovered in the underlying action.  See Ippolito, 696 N.Y.S.2d at 204; Volpe v. Canfield, 237 A.D.2d 282, 654 N.Y.S.2d 160,161 (2d Dep’t 1997); Larson v. Crucet, 105 A.D.2d 651, 481 N.Y.S.2d 368 (1st Dep’t 1984).

To establish these elements a plaintiff must show, inter alia, that the amount sought in the current malpractice case was also collectible in the underlying action.  See Larson, 481 N.Y.S.2d at 368 (“The law is well established that in order to succeed in a legal malpractice suit the plaintiff must demonstrate that he or she would have recovered in the underlying action but for the negligence of the attorney.  [citations omitted]  In that regard, proof of the collectibility of the judgment is part of the plaintiff’s affirmative case.”); Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 395 (S.D.N.Y. 2000) (“[E]ven if plaintiff were able to prove that there was a breach of duty and that he would have received a judgment in excess of the settlement figure, he could not establish injury because he is limited to what was reasonably collectible from the underlying defendants if the […]