Legal Malpractice

Sometimes its Too Early for Legal Malpractice

By (Andrew Lavoott Bluestone)

Here is an unusual "too early" case in legal malpractice: Analisa Salon Ltd. v. Elide Properties LLC, 7582/05 , January 28, 2008  

"Essential to a legal malpractice claim is proof that the alleged acts of an attorney proximately caused compensable damages. If there are no damages, there can be no cause of action. See Zletz v. Outten and Golden LLP, 18 AD3d 322 (1st Dept 2005). Since the main action is still pending, Elide cannot claim damages, and thus, its assertion of legal malpractice in the third-party complaint cannot stand. See Kahn Jewelry Corp v. Rosenfeld, 295 AD2d 261 (1st Dept 2002) (in view of the circumstances that the underlying action was still pending at the time of defendant's motion, plaintiffs have not yet sustained any actual damages attributable to the alleged malpractice). Mere speculation of loss resulting from alleged attorney negligence is insufficient to sustain a prima facie case of legal malpractice. See Luniewski v. Zeitlin, 188 AD2d 642 (2nd Dept 1992).

Moreover, Elide could not have stopped the eviction even if Salerno had advised it that same was improper, because Elide had no authority over defendant constable Kenneth R. Herbert in light of the lawfully issued warrant. Moreover, Elide's representative at the eviction, defendant Michael M. Seminara, a constable himself, knew same was premature, but did nothing. "

Full post as published by New York Attorney Malpractice Blog on February 28, 2008 (boomark / email).