Here is a case in which plaintiff was injured in a construction accident, and lost the case when it was discovered that the wrong parties were sued.  He turns to legal malpractice case, and avoids summary judgment in this decision.Hershorn v Grae, Rybicki & Partners, P.C. ,2007 NY Slip Op 06458 ,Decided on August 21, 2007 ,Appellate Division, Second Department

"The Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. The issue of whether or not Dinaso could be held liable for the damages alleged in the underlying action was not raised and necessarily determined in the underlying action (see Pinnacle Consultants v Leucadia Natl. Corp, 94 NY2d 426; Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481). Rather, the only issue necessarily determined was that the parties against whom the action was timely commenced, which did not include Dinaso, neither created nor had actual or constructive notice of the alleged dangerous and defective condition caused by the sheetrock. Accordingly, the issue of whether or not the plaintiffs would have prevailed in the underlying action but for the alleged negligence of the defendants in identifying and timely commencing the action as against Dinaso was not raised and necessarily determined in the underlying action, and dismissal of the action at bar was not warranted. "