Agate v. Herrick, Feinstein LLP

57 A.D.3d 341, 870 N.Y.2d 250

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2008
• Status: Published

Opinion

We affirm for reasons stated in Kaminsky v Herrick, Feinstein LLP (59 AD3d 1 [2008] [decided herewith]), namely, the failure to demonstrate any legal basis upon which a trier of fact might find that the alleged omission of defendants to present further expert testimony concerning plaintiffs’ damages would have resulted in a higher award by the arbitration panel. Thus, since plaintiff cannot establish that, but for the alleged negligence of his attorneys, the outcome of the underlying matter would have been substantially different (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]; N.A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730, 732 [1978]), his cause of action is deficient, and dismissal is required (Katash v Richard Kranis, PC., 229 AD2d 305, 306 [1996], lv dismissed 89 NY2d 981 [1997]). Concur—Tom, J.P., Friedman, Buckley and Catterson, JJ. [See 2006 NY Slip Op 30127(U).]