First Department Affirms Dismissal Of Legal Malpractice Claim Where Alleged Causation Was Speculative

Posted: September 11, 2026 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Motion to Dismiss, Damages

First Department Affirms Dismissal Of Legal Malpractice Claim Where Alleged Causation Was Speculative

On March 10, 2026, in Gans v. Leech Tishman Fuscaldo & Lampl, LLC, 247 AD3d 456, Index No. 152695/24, the Appellate Division, First Department, unanimously affirmed an order of Justice Anar Rathod Patel, which dismissed a legal malpractice complaint and denied leave to amend.

Plaintiff, a real estate investor, held a portfolio of roughly twenty commercial properties, including an entity that owned a West 28th Street property in Manhattan. After defaulting on preferred equity, senior mortgage, and mezzanine obligations in 2020, he engaged his longtime lawyers to restructure the debt. The preferred member noticed a public sale of his common membership interest, and that interest ultimately sold for $100,000. Plaintiff alleged that the lawyers committed malpractice by failing to take action and give advice that would have prevented the foreclosure, costing him a portfolio in which he held over $80 million in equity. The First Department held that, even assuming negligence, plaintiff had not pleaded proximate cause. In affirming, the Court explained:

Plaintiff's argument that the foreclosure of his interest in the 28th St property could have been prevented had Robinson Brog promptly contacted Preferred Member's counsel, Isaac Neuberger, after notice of the auction or Neuberger's June 30, 2021 email, is unavailing and purely speculative . . . . Moreover, even if Robinson Brog contacted Neuberger, plaintiff's admission that the Preferred Member "had not been acting in good faith throughout the process" and had a "scheme" to steal the 28th St property contradicts plaintiff's allegations of malpractice . . . . Further, it appears that the offer to purchase the 28th St property for $27 million would have been insufficient to make the Preferred Member whole, and thus it would have still been within its rights to sell. In short, plaintiff failed to demonstrate that but for Robinson Brog's inaction or delayed action as discussed above, the foreclosure would not have occurred. (citations omitted)

The attorneys at Schlam Stone & Dolan LLP have extensive experience bringing and defending professional malpractice claims, including claims against lawyers, and handling appeals from such claims. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning such issues.

To read more about the proximate cause element of a legal malpractice claim, see Schlam Stone & Dolan's related Commercial Division Blog posts on a decision dismissing claims against counsel where the plaintiff could establish transaction causation but not loss causation and a decision declining to dismiss a malpractice claim where questions of fact remained as to whether counsel had been engaged.