Complaint failed to adequately allege actual, ascertainable damages.

Posted on November 9, 2020 by Richard Klass

In Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504 [2d Dept 2020], the court affirmed dismissal of the case, holding that:

Here, the complaint failed to adequately allege actual, ascertainable damages. The general allegations that, as a result of the alleged acts of malpractice, the plaintiff was caused to incur “additional legal fees,” and caused to suffer “financial damages and expense,” “adverse financial consequences,” and “direct financial damage,” were all conclusory and inadequate to constitute “actual, ascertainable damages” (Dempster v. Liotti, 86 A.D.3d at 177, 924 N.Y.S.2d 484). To the extent that the complaint addressed the plaintiff’s settlement, the complaint alleged that the defendant’s negligence in its handling of the divorce action caused the plaintiff to suffer “direct prejudice … in both trial and/or settlement,” and that, but for such negligence, the plaintiff “would have fared far better at trial and/or in settlement of the Divorce Action.” These allegations are conclusory and lack any factual support, and they are inadequate to sufficiently allege that the stipulation of settlement that the plaintiff entered into with his former wife was “effectively compelled” by the mistakes of counsel (Rau v. Borenkoff, 262 A.D.2d 388, 389, 691 N.Y.S.2d 140; see Benishai v. Epstein, 116 A.D.3d 726, 728, 983 N.Y.S.2d 618). “The fact that the plaintiff subsequently was unhappy with the settlement [he] obtained … does not rise to the level of legal malpractice” (Holschauer v. Fisher, 5 A.D.3d 553, 554, 772 N.Y.S.2d 836). “Moreover, the plaintiff failed to plead specific factual allegations showing that, had he not settled, he would have obtained a more favorable outcome” (Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d 756, 758, 983 N.Y.S.2d 594; see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 813, 963 N.Y.S.2d 313; Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d at 1083, 803 N.Y.S.2d 571; Dweck Law Firm v. Mann, 283 A.D.2d 292, 293, 727 N.Y.S.2d 58; Rau v. Borenkoff, 262 A.D.2d at 389, 691 N.Y.S.2d 140). Accordingly, we agree with the Supreme Court’s determination to grant that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, alleging legal malpractice.