In Markov v Barrows, 172 NYS3d 434, 435 [1st Dept 2022], the court dismissed the legal malpractice action as follows:
Supreme Court properly dismissed plaintiff’s legal malpractice cause of action in the original complaint because he failed to allege that “but for” defendant’s negligent conduct, he would have prevailed in the underlying action (Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 272, 780 N.Y.S.2d 593 [1st Dept. 2004]; see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ). Plaintiff’s citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint (see Sonnenschine v. Giacomo, 295 A.D.2d 287, 287, 744 N.Y.S.2d 396 [1st Dept. 2002]).
Further, Supreme Court providently exercised its discretion in denying plaintiff’s motion for leave to amend the complaint because the claims asserted in the proposed amended complaint are devoid of merit (see Lewis v. Pierce Bainbridge Beck Price & Hecht, LLP, 205 A.D.3d 618, 166 N.Y.S.3d 864 [1st Dept. 2022])
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