Hindsight Criticism Does Not Establish Legal Malpractice

Dismissal of a legal malpractice claim was affirmed by the New York Appellate Division for the Second Judicial Department

Here, the plaintiffs failed to plead that, but for the defendants’ negligence, they would have prevailed in the underlying action (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813). To the contrary, as noted by the Supreme Court, it is uncontroverted that the plaintiffs settled the underlying action in order to avoid potential criminal liability for fraud. To the extent that the complaint alleged that the plaintiffs would have fared better at trial or in the settlement, the allegations in the complaint were conclusory and lacked factual support (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506). The plaintiffs’ “hindsight criticism of counsels’ reasonable course of action . . . does not rise to the level of legal malpractice” (Schiller v Bender, Burrows &Rosenthal, LLP, 116 AD3d at 758 [citation and internal quotation marks omitted]).

With respect to so much of the cause of action alleging legal malpractice as it relates to Jinder’s disability insurance claim matter, the plaintiffs also failed to set out the elements of a legal malpractice cause of action, including omitting certain basic factual information such as any allegations that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by any member of the legal profession and damages (see Keness v Feldman, Kramer &Monaco, P.C., 105 AD3d at 812). Moreover, the defendants established that, to the extent that the cause of action alleging legal malpractice was predicated upon Jindra’s disability insurance claim matter, it was barred by the applicable statute of limitations (see Webster v Sherman, 165 AD3d 738, 741; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735)

(Mike Frisch)