As the Appellate Division plows through the "what would have been the outcome" analysis of Ruotolo v Mussman & Northey    2013 NY Slip Op 02678   Decided on April 18, 2013
Appellate Division, First Department , we see the in depth factual and hypothetical work that’s done in a legal malpractice case.  Here, a former police officer sues his attorneys for failures in suing for employment discrimination and whistle blower status.  He fails, as the AD delves far into how his case hypothetically would have come out, had the attorneys performed as he says they should.

"In this legal malpractice action, plaintiff, a retired New York City police officer, retained defendants to represent him in a lawsuit against the New York City Police Department (NYPD) and the City of New York. The complaint in that lawsuit alleged retaliation in violation of the First Amendment based on plaintiff’s writing of a report, written pursuant to his duties as a safety officer, that identified certain possible environmental hazards at his police precinct. The complaint was dismissed because, while the case was pending, the United States Supreme Court held, in Garcetti v Ceballos (547 US 410 [2006]), that a government employee cannot claim First Amendment violations against his employer based on speech made "pursuant to" the employee’s official duties (id. at 421).

Plaintiff subsequently brought this malpractice action, primarily due to defendants’ alleged failure to amend the complaint to include claims that, allegedly, would not have been dismissed in light of Garcetti.

Supreme Court correctly held that defendants made a prima facie showing of lack of causation, and that plaintiff failed to present evidence in admissible form sufficient to raise a triable issue of fact (see e.g. GUS Consulting GmbH v Chadbourne & Parke LLP, 74 AD3d 677, 679 [1st Dept 2010], lv denied 16 NY3d 702 [2011]). In particular, plaintiff failed to demonstrate that he would have succeeded on the merits of the underlying action "but for" defendants’ alleged negligence in failing to amend the complaint (Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 218-219 [1st Dept 2007]).

Indeed, plaintiff would not have prevailed on his First Amendment retaliation claim even if defendants had amended the complaint to include plaintiff’s April 2000 conversation with a Police Benevolent Association (PBA) attorney regarding his report. The NYPD Patrol Guide states that, as a safety officer, he was required to "[a]ct as liaison for command on safety and health issues," which he did in meeting with the PBA attorney. In addition, plaintiff stated, in his deposition in the civil rights matter, that the PBA attorney sought him out specifically to discuss [*2]the report, and that he spoke to the PBA attorney at the precinct, on work time, with his supervisor’s knowledge. Thus, his conversation with the PBA attorney was undoubtedly "pursuant to" his duties as a safety officer and did not amount to speech protected by the First Amendment (Garcetti, 547 US at 421).

Plaintiff also would not have prevailed on any claim of a due process violation based on NYPD’s confiscation of his weapons before his retirement. Indeed, plaintiff does not dispute that there were postdeprivation state remedies available to him (Hudson v Palmer, 468 US 517, 533 [1984]; Hellenic American Neighborhood Action Committee v City of New York, 101 F3d 877, 880 [2d Cir 1996], cert dismissed 521 US 1140 [1997]). Although there is a factual issue as to whether defendants advised plaintiff to obtain counsel to pursue his claim in state court,
it is not a material issue because plaintiff never alleged malpractice on this basis. Nor does it warrant further discovery pursuant to CPLR 3212(f). "