In a stark example of the “but for” element of legal malpractice, Hoffman v Colleluori
2016 NY Slip Op 03850 Decided on May 18, 2016 Appellate Division, Second Department stands for the principal of “no-harm, no-foul.” Put another way, if plaintiff could not have won the underlying case, mistakes matter not.
“In 2006, the plaintiff retained the defendants (hereinafter the law firm) to commence an action in the United States District Court for the Eastern District of New York (hereinafter the federal action) against the Nassau County Police Department and certain police officers, inter alia, to recover damages for false imprisonment pursuant to 42 USC § 1983. The complaint did not contain a cause of action to recover damages for malicious prosecution under 42 USC § 1983. The District Court granted the County’s motion to dismiss the complaint, finding, among other things, that the cause of action to recover damages for false imprisonment pursuant to 42 USC § 1983 was time-barred. Subsequently, in 2008, the law firm, on behalf of the plaintiff, commenced an action in the Supreme Court, Nassau County, against the County and the same police officers, asserting, inter alia, a cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983. The Supreme Court granted the County’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the causes of action were time-barred.
In 2010, the plaintiff commenced this action against the law firm to recover damages for legal malpractice, alleging, among other things, that it had failed to timely assert the cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983 in the federal action. After joinder of issue and discovery, the law firm moved for summary judgment dismissing the complaint, contending that the plaintiff would not have prevailed on his malicious prosecution claim under 42 USC § 1983 even if it had been timely asserted in the federal action. The Supreme Court granted the motion.”
“Here, the law firm established, prima facie, that even if it had timely asserted a cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983 in the federal action, the plaintiff would not have been successful on the merits, since the plaintiff’s conviction and a judicial determination of probable cause in the underlying criminal proceeding created a presumption of the existence of probable cause for that criminal proceeding (see Knox v County of Putnam, 2012 WL 4462011, *4, 2012 US Dist LEXIS 139586, *16 [SD NY, No. 10 Civ 1671 (ER)]; Passucci v Home Depot, Inc., 67 AD3d 1470, 1471; Goddard v Daly, 295 AD2d 314, 315; Gullo v Graham, 255 AD2d 975, 976; see also Hamoudeh v Mandel, 62 AD3d 948, 949). In opposition, the plaintiff failed to raise a triable issue of fact.”