Legal Malpractice

Conclusory Damages in Legal Malpractice

By (Andrew Lavoott Bluestone)

Yesterday, we looked at  Escape Airports (USA), Inc. v Kent, Beatty & Gordon, LLP
2010 NY Slip Op 08981 ;  Decided on December 7, 2010 ;  Appellate Division, First Department in which Justice Kornreich was affirmed across the board. 
 

One defense in legal malpractice cases is that damages are speculative, conclusory, or cannot be stated in an ascertainable fashion.  This case revolved around an airport vendor's claim that the attorneys failed to advise them to insert two clauses into the contracts.  Defendants said that there could be no proof that the airlines would accept the clauses. The Court wrote:

"We also decline to upset the court's refusal to dismiss the claim to the extent it is predicated on defendant's alleged failure to include upper-limit-of-passengers and exclusivity provisions. Plaintiff has offered evidence that it suffered damages due to one airline vacating the premises during the lease period, and using the services of another lounge. Whether restrictive lease provisions would have been acceptable to the vacating airline is an issue we need not determine.

That portion of the motion addressing plaintiff's claim predicated on the occupancy agreement entered into with JFK International Air Terminal LLC was also correctly denied. The fact that plaintiff signed, and is thus bound by, the terms of this agreement does not preclude an action for malpractice against the attorney who assisted in drafting it. Plaintiff alleges that it retained defendant for the express purpose of providing advice with respect to standard terms and conditions to be incorporated in the occupancy agreement. It further alleges that defendant agreed to undertake this task, and did provide plaintiff with very specific comments regarding the standard terms and conditions, but failed to highlight or comment on the termination provision. It is axiomatic that counsel "may not shift to the client the legal responsibility it was specifically hired to undertake because of its superior knowledge" (Hart v Carro, Spanbock, Kaster & Cuiffo, 211 AD2d 617, 619 [1995]). Thus, a fact issue is presented as to whether defendant was negligent in the performance of duties within its area of expertise, and for which expertise it was retained. "

Full post as published by New York Attorney Malpractice Blog on December 09, 2010 (boomark / email).