Mendoza v. Schlossman

| N.Y. App. Div. | Mar 15, 1982

In a legal malpractice action, plaintiff appeals from (1) an order of the Supreme Court, Kings County (Lawrence, J.), entered October 23, 1980, which dismissed his complaint, and (2) a judgment entered thereon on December 2, 1980. Appeal from the order dismissed (see Matter of Aho, 39 NY2d 241, 248). Judgment reversed, order vacated, and matter remitted to Trial Term for further proceedings consistent herewith. Plaintiff is awarded one bill of costs. Where a default is entered against a defendant in a legal malpractice action, plaintiff is not required to prove the probable success of the underlying action upon an assessment of damages. An action for legal malpractice requires proof of three essential elements: (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages (see Creative Inception v Andrews, 50 AD2d 553). A default judgment on the issue of liability in a legal malpractice action disposes of the issue of the lawyer’s negligence and the validity of the underlying claim. Therefore upon assessment of damages, plaintiff is not required to establish the validity of the underlying action but must establish the injuries suffered and their value. Lazer, J. P., Mangano, O’Connor and Brown, JJ., concur.