It’s not possible to predict how an appellate court will decide summary judgment motions.  All know the standard.  Interpretation of the arguments varies from panel to panel.

Here is a recently decided legal malpractice summary judgment and appeal . Hamilton Duffy-Duncan, Plaintiff-Respondent, v Berns & Castro, et al., Defendants-Appellants.

2235, 27619/03 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2007 NY Slip Op 9493; 

The salient facts are a slip and fall on a patch of ice on an elevated outdoor subway platform.  The attorney failed to serve a timely notice of claim.  Here, the AD determined that defendants had not demonstrated that a storm condition would have provided a defense, or that  the TA might have defended on the issue of notice.  "The lack of discovery" here was held against the attorneys, not the plaintiff.  This is not always the case.