Katsoris v Bodnar & Milone, LLP 2026 NY Slip Op 05089 August 26, 2026 Appellate Division, Second Department is a case where the unusual happened. Plaintiff was able to reverse the dismissal of a legal malpractice claim.
“In an action, inter alia, to recover damages for breach of fiduciary duty and legal malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated June 30, 2021. The order granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendant’s motion which were pursuant to CPLR 3211(a) to dismiss so much of the cause of action alleging breach of fiduciary duty as sought to recover compensatory damages and injunctive relief and the cause of action alleging legal malpractice, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.
In 2018, the plaintiff commenced an action (hereinafter the 2018 action) against the defendant to recover damages for legal malpractice and breach of fiduciary duty as a result of the defendant’s representation of the plaintiff in an underlying matrimonial action against his wife. According to the complaint in the 2018 action, approximately one month after the note of issue was filed in the underlying matrimonial action, the plaintiff terminated the defendant’s services, retained another law firm, and settled the underlying matrimonial action. The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint in the 2018 action. In an order dated December 31, 2018, the Supreme Court granted the defendant’s motion. On appeal, this Court affirmed, determining that the complaint in the 2018 action failed to state a cause of action alleging legal malpractice and that the cause of action alleging breach of fiduciary duty, as pleaded, was duplicative of the legal malpractice cause of action (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1505-1507).”
“Here, the defendant failed to establish the elements necessary for the doctrines of res judicata and collateral estoppel to apply (see Blooming Home Realty, LLC v Infinity Holdings Northeast, LLC, 228 AD3d at 817). Contrary to the defendant’s contention, the dismissal of the complaint in the 2018 action was not a final judgment on the merits (see Shahid v Legal Aid Socy., 173 AD3d 1099, 1101), and the issues raised in the complaint in this action were not necessarily decided in the 2018 action (see Blooming Home Realty, LLC v Infinity Holdings Northeast, LLC, 228 AD3d at 817). Moreover, the complaint in this action corrected the relevant omissions in the complaint in the 2018 action (see id.). Accordingly, the Supreme Court should have denied dismissal of the complaint pursuant to CPLR 3211(a)(5).
“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Campbell v Law Off. of Solomon Rosengarten, 241 AD3d 771, 772 [internal quotation marks omitted]; see Howlader v Aranow Law, P.C., 242 AD3d 841, 841). 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 (Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d 1136, 1137 [internal quotation marks omitted]). “To establish causation, the plaintiff must also show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney’s negligence” (Stinnett v Derek Smith Law Group, PLLC, 241 AD3d 737, 738; see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d at 1137). Moreover, “[a] legal malpractice cause of action is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Valentina v Beckerman, 241 AD3d 751, 753 [internal quotation marks omitted]; see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d at 1137).
Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently stated a cause of action to recover damages for legal malpractice (see Postiglione v Sacks & Sacks, LLP, 233 AD3d 719, 721; Kowalski v Gold Benes, LLP, 232 AD3d 869, 871). The complaint alleged that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, inter alia, failing to provide proper financial advice regarding postcommencement spending, obtain necessary discovery, and designate a needed expert.”