We have come to believe that an artificially large number of legal malpractice cases are dismissed at the pleading stage, generally in an early "but for" analysis by the Court.  Courts (in our anecdotal opinion) delve far further into the underlying case in legal malpractice litigation than they do elsewhere.  Granted, legal malpractice is unique, and one must always prove a case within a case, but nevertheless.

Here, in Magnus v Sklover ; 2012 NY Slip Op 03415 ; Decided on May 1, 2012 ; Appellate Division, Second Department Justice Lefkowitz in Supreme Court, Westchester County denied defendants three-headed motion to dismiss.  She was affirmed on appeal.
 

"The Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging legal malpractice based on documentary evidence. A motion pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "

"Accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, the complaint states a legally cognizable cause of action sounding in legal malpractice (see Guayara v Harry I. Katz, P.C., 83 AD3d 661). Thus, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. "

"In addition, the Supreme Court properly denied that branch of the defendants’ motion which was, in the alternative, to disqualify the plaintiff’s attorneys. "The advocate-witness rules contained in the Rules of Professional Conduct (see 22 NYCRR 1200.0) provide guidance, but are not binding authority, for the courts in determining whether a party’s attorney should be disqualified during litigation" (Trimarco v Data Treasury Corp., 91 AD3d 756, 757; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440)."