In Premier Pharmacy, Inc. v. Bachner, (NYLJ, Dec. 26, 1997 at col 5 (Sup Ct, NY County), the plaintiff sued the defendant law firm for legal malpractice relating to an earn-out clause contained in an agreement drafted by the defendant.
The complaint alleged that the defendant did not exercise the requisite degree of care and skill because it failed to draft the disputed clause in a clear and unambiguous fashion, and failed to properly advise the plaintiff as to what event would trigger the clause.
The complaint further alleged that these deficiencies resulted in the other party's misinterpretation of the clause, and the commencement of a lawsuit in Westchester "which plaintiff has had to defend, thereby incurring damages in the form of attorney's fees, as well as the potential liability sought." Id.
Defendant moved for dismissal of the complaint, arguing that Premier's suit was premature, because the Westchester lawsuit against it had not been concluded, and that any alleged damages were therefore speculative.
The court rejected the defendant's claim that the action was premature and denied the motion to dismiss, stating that:
Plaintiff clearly claims actual damages in the form of attorney's fees in the Westchester action, as the result of the alleged negligence in drafting the agreement. The fact that the precise amount has not yet been determined does not preclude the institution of the instant action Id.