Actually, this is really the year’s best example of no “but for” causation. This failing led to dismissal in Magassouba v Purcigliotti 2019 NY Slip Op 08938 Decided on December 12, 2019 Appellate Division, First Department. Because the AD determined that plaintiff could never have won the case, the attorneys failings made no difference at all.
“This action alleging legal malpractice was correctly dismissed because plaintiff could not show that, but for defendants’ negligence, he would have prevailed in the underlying action alleging false arrest, wrongful imprisonment, and the deprivation of rights under 42 USC § 1983 (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 ). Plaintiff could not have prevailed in that action because the dismissing court found that there was probable cause for his arrest, and probable cause is a complete defense to the claims plaintiff asserted (Marrero v City of New York, 33 AD3d 556, 557 [1st Dept 2006]; Brooks v Whiteford, 384 F Supp 3d 365, 371 [WD NY 2019]). Plaintiff’s proposed amended malpractice complaint, which, in essence, restates the original allegations, does not rectify the deficiency.
Plaintiff’s argument that defendants failed to timely file the underlying action is unavailing because, even timely, the action would have been dismissed on the substantive ground of probable cause. His argument that defendants filed the underlying action in the wrong courthouse is unavailing because the action was dismissed against the Allegheny County District Attorney on grounds of personal jurisdiction, not subject matter jurisdiction.”