Often, a legal malpractice case hinges on what a court would have done if there were no settlement, or if a certain witness were called, or if a certain document had been offered for admission. Courts routinely refuse to “speculate” what would have happened if. This is not always true in other types of litigation. Example: If there had been no breach of contract in a commercial setting, what would next years’ profits have been? Example, after being struck by an auto, what will the plaintiff’s future medical treatments require and how much will they cost?
In any event, Santostefano v Zabell 2026 NY Slip Op 05202 September 2, 2026 Appellate Division, Second Department was dismisssed for speculation.
“In April 2018, the plaintiff commenced this action against the defendants, Zabell & Associates, P.C., and Saul Zabell, a partner at the firm (hereinafter together the defendants), inter alia, to recover damages for legal malpractice arising out of the defendants’ representation of him at a hearing on charges brought against him by his employer, The Middle Country Central School District (hereinafter the underlying proceeding). The plaintiff alleged, among other things, that the defendants negligently advised the plaintiff to settle the underlying proceeding. The defendants moved for summary judgment dismissing the complaint. The plaintiff opposed. In an order dated April 27, 2022, the Supreme Court granted the defendants’ motion. The plaintiff appeals.
A plaintiff in an action alleging legal malpractice must prove that the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Sang Seok Na v Schietroma, 163 AD3d 597, 598). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Provenzano v Cellino & Barnes, P.C., 207 AD3d 763, 764 [internal quotation marks omitted]; see Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625). If the defendant meets that burden, the burden shifts to the plaintiff to raise a triable issue of fact. To establish proximate causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney’s negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757). “‘Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice'” (Alaimo v Mongelli, 93 AD3d 742, 743, quoting Humbert v Allen, 89 AD3d 804, 806).
Here, the defendants established, prima facie, that the plaintiff did not sustain any actual and ascertainable damages (see Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s claims that he could have obtained a more favorable outcome at a hearing had he declined to enter into the settlement are conclusory and speculative (see Casey v Exum, 219 AD3d 456, 457; Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506).”