On November 4, 1992, the plaintiffs retained the defendant Jeffrey L. Schwartz, a member of the defendant law firm. Schwartz counseled the plaintiffs to enter into an “as is” lease for property at 409 Main Street in Free-port (hereinafter the premises) with a rent of $2,400 per month and an option to buy, exercisable prior to December 1, 1994, for the sum of $240,000 less credits for rent paid. The term of the lease was for two years, beginning on January 1, 1993, and expiring on December 31, 1994. The complaint alleged that Schwartz never conducted any due diligence concerning the premises, its history, or prior uses. As a result, the plaintiffs were allegedly unaware, when they executed the lease on December 21, 1992, that the premises had been classified by the New York State Department of Environmental Conservation (hereinafter the DEC) as a level 2A inactive hazardous waste disposal site.
According to the plaintiff Ted Barnett (hereinafter Barnett), after executing the lease the plaintiffs began renovating the premises for its intended use, to wit, the manufacture of barbecue sauce. Barnett claimed that he did not learn of the status of the premises as an environmentally-impaired site until February of 1994. He informed Schwartz, who advised him to continue paying rent while he obtained an extension of the option to buy until December 31, 1995, during which time he would get the landlord to remedy the condition. Additional extensions of the option were granted over the next few years. In August 2001 the plaintiffs received a letter from Schwartz advising them that the condition had been remedied and that, in order to exercise the option to buy, they had to obtain financing. Instead, the plaintiffs opted to have their sauce manufactured by a third party and failed to obtain the financing for the purchase of the premises.
The proof at trial demonstrated, without contradiction, the following additional facts. The plaintiffs stopped paying rent and taxes in October 1995 and remained in possession until 2001 without making any payments. The site was officially delisted as a hazardous waste site by the DEC on December 15, 2000. Until 2001, the plaintiffs continued to tell Schwartz that they were interested in purchasing the property. Thereafter, *210they changed their minds and instead brought the instant action. The building was sold a year or two later for the sum of $280,000—a price in excess of the price of the option exclusive of the credits to which the plaintiffs were entitled.
At trial the defendants called an expert who testified that during the time period in question the failure to condition a lease on a phase one environmental assessment would not be a breach of the then-prevailing standards of legal representation. The defendants’ expert maintained that environmental assessment would not be done in the context of a lease and might only be warranted in the context of a purchase because the cost of such assessment was prohibitive and would only be justified in the context of a purchase. The defendants’ expert also testified that the presence of an “as is” clause would not necessarily be a red flag and is present in almost every similar transaction. The plaintiffs’ expert agreed that an “as is” clause is not uncommon, but asserted that, in the context of this lease/option to purchase transaction and the facts known to the defendants, additional steps should have been taken to insure that the site was not environmentally impaired.
As part of the jury charge the court stated that the plaintiffs were required to establish “that the defendant’s negligence was a substantial factor in causing actual damages to the plaintiffs.” Consistent with that charge, the verdict sheet instructed the jury to answer the following questions: “Was the defendant Jeffrey Schwartz’s negligent conduct in connection with the lease and purchase agreement a substantial contributing cause of actual financial damages to . . . the plaintiffs?” The defense took vigorous exception to the “substantial contributing cause” language in both the charge and the verdict sheet.
In an action to recover damages for legal malpractice, the plaintiff must prove the following three essential elements: (1) the negligence of the attorney; (2) that such “negligence was the proximate cause of the loss sustained” (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 170 AD2d 108, 114, affd 80 NY2d 377 [1992] [emphasis added]), and (3) that the plaintiff sustained damages as a result of the attorney’s action or inaction (id.; see Bauza v Livington, 40 AD3d 791 [2007]). Legal malpractice must be demonstrated by proof sufficient to show that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community (see Bauza v Livington, 40 AD3d 791 [2007]). To establish the elements of proximate cause and *211actual damages in a legal malpractice case, a plaintiff must prove that a favorable outcome would have been obtained but for the attorney’s negligence (see Carmel v Lunney, 70 NY2d 169 [1987]; Zasso v Maher, 226 AD2d 366 [1996]; Hill v Fisher & Fisher, 203 AD2d 328 [1994]). Failure to plead and prove the requisite allegation that “but for” the attorney’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages is fatal to the viability of a legal malpractice action (see Bauza v Livington, 40 AD3d 791 [2007]).
Under New York law, “ ‘unless the ordinary experience of the fact-finder provides sufficient basis for judging the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care, expert testimony will be necessary to establish that the attorney breached a standard of professional care and skill’ ” (Estate of Ginor v Landsberg, 960 F Supp 661, 672 [1996], affd 159 F3d 1346 [1998], quoting Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]; see also O’Brien v Spuck, 99 AD2d 910 [1984]).
Applying these basic principles to the facts adduced at this trial, I conclude that the judgment must be reversed and that the defendants’ motion for a directed verdict should have been granted. Based on this record no reasonable view of the evidence can sustain the verdict reached by the jury. Both the plaintiffs’ and the defendants’ experts testified that in representing a tenant, an “as is” lease is not uncommon. Moreover, on cross-examination, the plaintiffs’ expert conceded that there was no statutory or regulatory prohibitions which would have prevented the plaintiffs from using the premises for the purpose intended in 1992 to 1994 notwithstanding its listing as a possible inactive hazardous waste site. Thus, whether viewed as a lease or a prospective purchase of property in toto, the alleged environmental status of the premises did not impair the intended use of the premises by the plaintiffs. The marketability of the premises is not at issue since the plaintiffs were not obligated to purchase the premises.
Even if that were not the case, insofar as the alleged malpractice entailed Schwartz’s failure to ascertain the status of the premises or his advice to the plaintiffs to enter into the lease despite the “as is” clause without further due diligence on their part, the plaintiffs’ proof did not establish that had Schwartz insisted on something other than the “as is” clause the landlord would have acquiesced to such efforts, and that absent such an alternative provision in the lease the plaintiffs would not have *212entered into the lease. These omissions of proof are fatal to the plaintiffs’ cause of action (see Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082 [2005]). Barnett’s pro forma declaration that he would not have entered into the lease if he had known its environmental status is not determinative and is only one factor for the jury to consider. The facts established here are such that a jury correctly charged could have found otherwise. It is irrefutable that, even after learning of the premises’ status as a level 2A inactive hazardous waste site, the plaintiffs opted to continue to exercise their option and expressed an unequivocal desire to continue with a conveyance of title. Thus, the alleged malpractice of the attorney in not exercising due diligence was not the cause of the plaintiffs’ alleged injury. Indeed, Barnett candidly admitted that the gravamen of his action was not the failure to exercise due diligence but, rather, Schwartz’s repeated advice to continue with the deal notwithstanding the environmental status of the premises. The plaintiffs changed their minds only after they elected a different alternative for the marketing and/or manufacturing of the barbecue sauce, a circumstance which occurred after the premises had been delisted by the DEC.
To the extent that the alleged malpractice was predicated on Schwartz’s advice to see the deal through, there is no proof that such advice constituted malpractice or resulted in any damages to the plaintiffs. As we have consistently held, the mere dissatisfaction with a strategic choice of counsel is not malpractice (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561 [2003]). On the contrary, had the plaintiffs followed that advice, they would have had the use of the premises without rent for the entire period beyond October of 1995 and, upon its sale (i.e., if they were disposed to sell), would have realized a sum in excess of the option price. In other words, the plaintiffs would have sustained no damages had they followed their attorney’s advice to consummate the transaction.
Accordingly, I feel there were no facts upon which the jury could render a finding of legal malpractice. Even if that were not the case, the question submitted to the jury was, in any event, not proper, as the jury was required to determine if the defendants’ alleged acts of malpractice were the proximate cause (i.e., direct, primary, or sole cause) of the plaintiffs’ damages (see Carmel v Lunney, 70 NY2d 169 [1987]). The footnote cited in Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Mill-stein, Felder & Steiner (96 NY2d 300, 305 n 2 [2001]), citing *213Cicorelli v Capobianco (89 AD2d 842 [1982], affd 59 NY2d 626 [1983]), relied upon by the majority, does not require a contrary result. A close examination of these cases indicates that while the word “mitigate” was employed, the holdings merely show such word was utilized as expressing that acts of the client can “negate” the imposition of liability upon the attorney for malpractice and consequently can be pleaded as an affirmative defense by the attorney/defendant. Neither of these cited cases or any Court of Appeals cases cited by the majority indicate the requisite “but for” requirement is satisfied by proof that the malpractice was merely one (of several proven causes) resulting in the loss sustained.
While I concede that in sustaining their burden in satisfying the “but for” requirement of the legal malpractice cause of action, the plaintiffs need not show that the defendants’ conduct was the only or sole factor resulting in the plaintiffs’ damages, nonetheless, the plaintiff must still conclusively demonstrate that such conduct was the primary, direct, or predominant cause of the loss sustained (see 7A CJS, Attorney and Client § 302). I believe that to prevail in a legal malpractice action the plaintiff is required to prove something more than that which was charged to the jury herein (to wit, that the jury need only find that the attorneys’ neglect was a proximate cause of the plaintiffs’ damages—i.e., one of several possible causes, including the plaintiffs’ own culpable conduct). Whether intended or not, the trial court’s employment of the phraseology in question and the majority’s approval thereof will inevitably be construed by future plaintiffs as a diminishment of what heretofore had been a very rigorous standard of proof. I cannot in good conscience join in an opinion which will diminish the burden of proof to be met by plaintiffs in legal malpractice cases, and which is not in accordance with our precedent.
In my view, the judgment under appeal should be reversed and that branch of the defendants’ motion which was pursuant to CPLR 4404 to set aside the jury verdict and for judgment as a matter of law should have been granted. Alternatively, the matter should be remitted for a new trial to determine if the plaintiffs met their burden with respect to establishing the “but for” requirement of a legal malpractice action. I, therefore, respectfully dissent.
Crane, J.P., and Balkin, J., concur with Ritter, J.; Lifson, J., dissents and votes to reverse the judgment in a separate opinion.
*214Ordered that the judgment is modified, on the law, by adding thereto, a provision awarding the plaintiffs prejudgment interest; as so modified, the judgment is affirmed, with costs to the plaintiffs, and the matter is remitted to the Supreme Court, Nassau County, for entry of an amended judgment with prejudgment interest to be calculated in accordance herewith, and the order entered April 20, 2005, is modified accordingly.