In March 2021, a Staten Island Judge dismissed a legal malpractice suit brought against a law firm that allegedly allowed a default judgment to be taken against the client for $865,000. The issue before the Court was whether the legal malpractice suit was premature since the defendant law firm had successfully filed a motion to stay the default judgment pending a hearing on their motion to vacate the default which was scheduled to be heard the following week. It has long been the rule that when the underlying law suit may still be heard on the merits - any damages claimed are speculative until the litigation complained of has been resolved.

The plaintiff argued that if the defendant law firm succeeded in resurrecting the defense to the underlying litigation he would discontinue or drop the legal malpractice suit. The Court held that since the issue of causation and damages in the legal malpractice suit are dependent on the outcome of the pending hearing in the underlying litigation, the suit was premature and must be dismissed with leave to replead. In other words, this law suit lacked two of the material elements of a legal malpractice claim-causation and damages.  Aydiner v Karasik Law Group, PC, 2021 NY Slip Op 30781

As a side note the hearing on the underlying default has been adjourned to September 2021.