Legal Memorandum: Legal Malpractice Action in NY

Issue: In New York, will a legal malpractice lawsuit be dismissed if it can be shown that the plaintiff would not have recovered damages in the underlying lawsuit?

Under New York law, the plaintiff in a legal malpractice action must prove that the attorney was negligent in the underlying lawsuit, and that the attorney=s negligence proximately caused the plaintiff=s damages.  Ippolito v. McCormack, Damiani, Lowe & Mellon, 265 A.D.2d 303, 696 N.Y.S.2d 203, 204 (2d Dep=t 1999).  The causation factor is met by a showing that but for the attorney=s negligence the plaintiff would have prevailed in the underlying suit.  Id., 696 N.Y.S.2d at 204.  The defendant in a legal malpractice lawsuit is entitled to dismissal upon a showing that the plaintiff cannot prove one of these elements.  Id. (affirming dismissal of the legal malpractice action because the plaintiff would not have prevailed in the underlying lawsuit).  See also Ostriker v. Taylor, Atkins & Ostrow, 258 A.D.2d 572, 685 N.Y.S.2d 470, 471 (2d Dep=t) (affirming summary judgment in favor of the attorney defendants based on their showing that the plaintiff could not prove that she would have prevailed in the underlying action), leave to appeal denied, 716 N.E.2d 696, 93 N.Y.2d 809, 694 N.Y.S.2d 631 (1999).  In New York, it is the defendant lawyer who bears the burden of proving that an affirmative defense would have defeated the underlying claim.  Romanian Am. Interests, Inc. v. Scher, 94 A.D.2d 549, 464 N.Y.S.2d 821, 824  (2d Dep=t 1983).  The defendant lawyer who meets this burden of proving that the plaintiff would not have prevailed in the underlying action is entitled […]