In Markov v Barrows 2020 NY Slip Op 31010(U) April 20, 2020 Supreme Court, New York County Docket Number: Index No. 158043/2019 decided by Judge Margaret A. Chan we see a well-written explanation of the tension between a departure from good practice (failing to name a party) and the requirement that the “but for” showing demonstrate that had the party been named, there would have been a good case against it.

“This action arises out of defendant Michael Barrows, Esq.’s representation of plaintiff Dmitry Markov d/b/a Dmitry Markov Coins & Medals in an underlying action, Markov v Spectrum Group Intern., Inc. (2015 NY Slip Op 30054[U] [Sup Ct, NY County 2015]). Plaintiff retained Barrows to pursue a claim against the seller of a Russian medal, known as a Russian Military Order (the Medal). Plaintiff alleged that at an auction on January 14, 2008, the seller misrepresented that the Medal was encrusted with diamonds, and in reliance thereon, plaintiff purchased the Medal. Plaintiff subsequently learned that the Medal was, in fact, not encrusted “with diamonds. ”

“In the instant matter, plaintiff alleges that Barrows was aware that Stacks was the proper defendant prior to filing the complaint in the underlying action but failed to timely add Stacks as a defendant and negligently relied on CPLR 1024 (NYSCEF # 16 – Complaint, ¶¶ 27-30, 62). Plaintiff also alleges that on December 27, 2013, he informed Barrows by email that Stacks was the proper defendant, but that Barrows failed to amend the complaint as of right, despite the opportunity to do so (id., ¶¶ 31-34). ”

“Defendants’ second argument is on the sufficiency of the complaint.Defendants point out that while the gravamen of plaintiff’s complaint is tha tdefendants failed to timely name Stacks as a defendant in the underlying action,the complaint is devoid of any specific factual allegations that plaintiff would have been successful in the underlying action “but for” defendants’ negligence (Magassouba v Cascione, 178 AD3d 509, 509 [1st Dept 2019]; Salans LLP v VBH Properties SRL, 171 AD3d 460, 461 [1st Dept 2019]).

The complaint contains multiple paragraphs on Barrow’s failure to timely add Stacks as a defendant in the underlying action. The complaint’s only mention that could be framed as an allegation that plaintiff would have been successful but for Barrow’s negligence is that the fraud and misrepresentation claims were not dismissed in the order dated January 14, 2015. But even with a generous reading of that “allegation”, the success attributable to plaintiff is limited to only that dismissal motion (NYSCEF # 34 at 6). Absent a showing that “but for” the attorney’s conduct, plaintiff would have prevailed in the underlying matter, plaintiff’s cause of action for legal malpractice against defendant Barrows cannot be sustained.

Defendants urge this court to bar plaintiff from alleging that Barrows was aware that Stacks was the proper defendant prior to the expiration of the statute of limitations in the underlying case because of an admission made by plaintiff. This request is superfluous given the above finding dismissing the legal malpractice claim against Barrows. In any event, it would be denied because the admission was in plaintiff’s affidavit, which was prepared at the time Barrows was representing plaintiff (NYSCEF # 21). And the affidavit was contradicted by an email of December 27, 2013, in which plaintiff alerted Barrows to Stack as the proper defendant (NYSCEF # 32).”