Attorney Malpractice: New York's Measure of Damages--Benefit-of-the-Bargain? A Rose by Any Other Name

Authors

Jacob L. Todres

Publication Date

2012

Document Type

Article

Abstract

(Excerpt)

While it might be asymmetrical and a bit intellectually troubling that there is no attractive and pithy catch phrase describing the negligence measure of damages, as there is for fraud and breach of contract damages, I do not wish to address the entire negligence area. Negligence seems to be very broad and to include many disparate segments. For instance, it includes personal injuries by automobiles and other means, medical malpractice, damage to property, malpractice by all types of professionals, etc. Many of these areas have developed unique rules to deal with their unique circumstances. I assume the existence of these many different adaptations prevent the broad negligence area from being susceptible to one simple, catchy description. I certainly am unable to suggest one. However, I wish to focus solely on one segment of the negligence area. It is the thesis of this Article that the traditional measure of damages in New York in all attorney malpractice situations, including tax malpractice, is essentially the same as the breach of contract measure of damages, that is, benefit-of-the-bargain damages. This is based primarily upon the definition of each measure of damages. It is also buttressed by cases that indicate that in attorney malpractice situations the damages recoverable are the same regardless of whether the cause of action is framed in tort, that is, negligence, or breach of contract.