Gordon & Rees New York Team Prevails on Motion to Dismiss in Legal Malpractice Case

March 2023

Gordon Rees Scully Mansukhani Partner Joseph Salvo and Associate Kevin Volkommer prevailed on a motion to dismiss on behalf of their attorney-client in an alleged $1.44 million legal malpractice case.

The plaintiff alleged causes of action for legal malpractice against the attorney-client based on an underlying personal injury action wherein the attorney-client assigned co-defendant as trial counsel. The underlying matter, which was solely as to contributory negligence, resulted in an adverse verdict to the plaintiff, which he blamed on the co-defendant for allegedly failing to introduce witnesses and evidence the plaintiff believed necessary, and on the attorney-client for not consulting with the plaintiff prior to assigning the co-defendant as counsel and not providing the co-defendant with enough time to prepare for the trial. The plaintiff claimed that if the co-defendant had more time to review the evidence, such as deposition testimony, prior to the trial then he would have succeeded. The plaintiff alleged his client was damaged in the amount of $720,000.

The attorney-client moved to dismiss the plaintiff’s entire complaint arguing that the plaintiff failed to allege a breach of duty because assigning trial counsel was agreed to in the retainer agreement and the plaintiff’s claim that the attorney-client assigned the trial counsel in an untimely manner was a matter of opinion. Further, the attorney-client argued that the plaintiff failed to allege proximate causation, as the complaint was devoid of the necessary "but-for" language required to argue that the plaintiff would have achieved a better outcome.

Finally, the attorney-client argued the plaintiff’s claims were merely a disagreement over trial strategy by citing to the trial transcript wherein the co-defendant successfully cross-examined the underlying matter’s defendant using the underlying defendant’s own testimony to catch him in a purported lie. Essentially, although the underlying matter resulted in an unfortunate outcome, that outcome was not the result of malpractice but of a jury’s decision. 

After amending his complaint, which caused the attorney-client to file a second motion to dismiss as the plaintiff added a duplicative cause of action for breach of fiduciary duty, alleging to be damaged in the amount of an additional $720,000 for pain and mental suffering, the New York County Supreme Court ruled in favor of the attorney-client and dismissed the plaintiff’s complaint. The New York County Supreme Court agreed with the attorney-client that the plaintiff failed to allege a breach, failed to allege proximate causation by not including "but-for" language, and failed to establish how he would have achieved a better outcome. The New York County Supreme Court therefore dismissed the plaintiff’s complaint as to the attorney-client.