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Plaintiff’s Complaint Dismissed For Failure to Allege Case-Within-A-Case

Buchanan v. Law Offices of Sheldon E. Green, P.C., 2023 NY Slip Op 1980 (New York Appellate Division, 2nd Department 2023), appears to be a slam dunk legal malpractice case but it was dismissed. Why? Because the plaintiff failed to plausibly allege that she would have won the underlying case.

The underlying case was a wrongful death case against a drug treatment facility. The alleged legal malpractice was the alleged failure to serve the complaint in the underlying wrongful death case. However, plaintiff failed to include sufficient allegations to show that she would have won the underlying case against the treatment facility.

The key discussion in the opinion appears here:

Here, the plaintiffs alleged that the decedent died after a brief admission to a drug and behavioral treatment facility, that the defendants agreed to represent the plaintiffs in an underlying action against the treatment facility and the medical providers who treated the decedent, that the defendants committed legal malpractice by failing to timely complete service of process in an action commenced in state court and by failing to commence a wrongful death cause of action in federal court before the applicable statute of limitations expired, and that the defendants’ failures resulted in the plaintiffs being unable to recover on their wrongful death causes of action. Absent from the complaint are any factual allegations relating to the basis for the plaintiffs’ purported wrongful death causes of action against the treatment facility or medical providers.

Accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the complaint failed to set forth facts sufficient to allege that the defendant’s purported negligence proximately caused the plaintiffs to sustain actual and ascertainable damages (see Joseph v Fensterman, 204 AD3d at 770-771). Even when considered with the documents submitted by the plaintiffs in opposition to the defendant’s motion, the complaint failed to allege any facts tending to show that, but for the defendant’s alleged negligence in failing to timely serve process in the state court action and in failing to timely commence an action in federal court, the plaintiffs would have achieved a more favorable outcome on their wrongful death causes of action (see Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018; see also Denisco v Uysal, 195 AD3d 989, 991; Weiner v Hershman & Leicher, 248 AD2d 193, 193; cf. Aristakesian v Ballon Stoll Bader & Nadler, P.C., 165 AD3d 1023, 1024). Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the first cause of action insofar as asserted against it.

If you have a question about a legal malpractice issue, do not hesitate to contact me. We can often provide insight even in a brief phone call.

Ed Clinton, Jr.

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