Brodeur v. Hayes, 18 A.D.3d 979, 795 N.Y.S.2d 761 (2005)

NY: underlying suit on  personally guaranteed notes 

Student Contributor: Alexis Trezza

Facts: Defendant and his law firm represented plaintiff and his various businesses for many years. Plaintiff had personally guaranteed several notes and mortgages on a piece of property that he used for his business. When they were in default, National Bank of Delaware County commenced a foreclosure proceeding and the Broome County Industrial Development Agency (BCIDA) commenced an action on its note. In the BCIDA action, defendants accepted service on plaintiff’s behalf and, without first consulting the plaintiff, stipulated that plaintiff had no defense to the action, consenting to a default judgment. A default judgment was also entered in the National Bank action due to defendants’ failure to serve an answer after accepting service on his behalf. Plaintiff commenced an action for legal malpractice against defendants, and there was extensive motion practice by both the plaintiff and defendants. Significantly, the Court granted defendants’ motion for summary judgment dismissing plaintiff’s claim against them. Plaintiff appeals.

Issue: Was defendants’ motion for summary judgment properly granted?

Ruling: Yes, because plaintiffs failed to offer any concrete proof of damages. A legal malpractice cause of action requires proof that the attorney was negligent in handling the plaintiff’s matter, such negligence proximately caused a loss and “plaintiff suffered actual and ascertainable damages.” Failure to timely interpose an answer constitutes negligence through a breach of an attorney’s professional standard of care. To establish proximate cause, however, the client must still show that he or she would have been successful in the underlying action. Plaintiff did not assert any viable defenses to either of the actions and the damages that he asserted were speculative rather than actual, ascertainable damages.

Lesson: In order for a claim for legal malpractice to survive a motion for summary judgment dismissing the claim, a plaintiff needs to both assert and prove each and every element of the malpractice claim. In terms of damages, a plaintiff may not simply assert that he or she suffered damages; he or she must substantiate his or her claim with proof of same.