Legal malpractice is always the comparison of the actual outcome of litigation and the hypothetical better outcome had the attorneys acted differently. Putting aside questions of strategy, if the attorneys departed from good practice and the financial outcome is negative for plaintiff then legal malpractice is demonstrated, no?
Often courts hold that the proofs of the hypothetical better outcome are merely speculation on future events. Kolyer v Sallah 2026 NY Slip Op 04287 [251 AD3d 670] July 8, 2026 Appellate Division, Second Department is one such case.
“The plaintiff commenced this action to recover damages for legal malpractice arising out of the defendants’ legal representation of her in a post-divorce matrimonial proceeding. The defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint on the ground, inter alia, of failure to state a cause of action. The plaintiff opposed the motion. In an order dated September 20, 2024, the Supreme Court granted the defendants’ motion. The plaintiff appeals.
“Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (GLD3, LLC v Albra, 241 AD3d 1288, 1290 [2025] [internal quotation marks omitted]).”
“”Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506 [internal quotation marks omitted]; see Ofman v Richland, 234 AD3d 865, 868 [2025]; Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1251 [2017]).
Here, the Supreme Court properly determined that dismissal of the complaint was warranted pursuant to CPLR 3211 (a) (7), on the ground of failure to state a cause of action. The plaintiff’s allegation that she would have received a larger amount of her former husband’s disability pension but for the defendants’ negligence was conclusory and speculative under the circumstances and in light of the evidentiary material submitted and considered on the defendants’ motion (see York v Frank, 209 AD3d 804, 807 [2022]; Denisco v Uysal, 195 AD3d 989, 991 [2021]; Maroulis v Sari M. Friedman, P.C., 153 AD3d at 1252).”