Hirsch v Walder 2022 NY Slip Op 00124  Decided on January 11, 2022
Appellate Division, First Department is an example of the depth to which the Courts go in making determinative decisions on early-pleading motions to dismiss.  In this case, even though unstated, the decision is based upon CPLR 3211(a)(1).  The Court reviewed some documents provided by the attorneys and decided, as a matter of law, that plaintiffs could not have won the underlying claim against their insurers.

“Defendants’ documentary evidence — in particular, the insurance policy at issue in the underlying action brought by plaintiff against the insurer and the condominium — demonstrates conclusively that plaintiff could not have prevailed in that action even if defendants had not missed the contractual limitations period. Thus, plaintiff failed to show, as required to state a cause of action for legal malpractice, that but for defendants’ conduct he would have prevailed in the underlying action (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]).

While defendants did not commence suit against the insurance company within the two-year period of the policy after the 2014 loss, the documentary evidence establishes that the policy afforded no coverage for plaintiff’s loss. The policy unambiguously limits coverage to premises in which the insured resides and it is undisputed that plaintiff did not reside at the Condo Unit at the time of the loss (see Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57 [2d Dept 2000]). In light of this conclusion, we need not address the remaining arguments raised by defendants on appeal.”