Page 147 - FDCC_InsightsSpecialIssue23
P. 147
Professional Liability Law
“in effect, decide a lawsuit within a lawsuit.” Plaintiff must show that he would have been successful in his lawsuit, which sometimes is called the “Underlying Case.”1
Collectability
New York’s highest court, the Court of Appeals, has held that “[where] the injury suffered is the loss of a cause of action, the measure of damages is generally the value of the claim lost.”2 However, the Plaintiff’s damages in a legal malpractice action are limited to the amount “that would have been collectable” against the Defendants in the Underlying Case. To hold otherwise would create the opportunity for a “windfall.”3
1 This description is derived from New York’s Pattern Jury Instr.—Civil 2:152.
2 Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38 (1990).
3 McKenna v. Forsyth & Forsyth, 280 A.D.2d 79 (4th Dep’t. 2001).
138
FDCC ANNUAL FIVES 2023
