Courts are ready to consider dismissal of legal malpractice cases, especially when the motion for dismissal is predicated on the "but for" portion of the legal malpractice formula.  Put another way, even on thinly produced evidence, and before there is any discovery, courts are willing and able to determine whether plaintiff could have succeeded in the underlying case, even though the defendant attorney has not been deposed, and has not been required to exchange documents. 

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire   2013 NY Slip Op 03566  decided on May 16, 2013 Appellate Division, First Department is an example. 
"The motion court properly dismissed the legal malpractice claim, as defendant failed to "meet the case within a case’ requirement, demonstrating that but for’ the attorney’s conduct the [plaintiff] client would have prevailed in the underlying matter or would not have sustained any ascertainable damages" (Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).
Longmire failed to show that he would have established a prima facie case of race-based discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; see also McDonnell Douglas Corp. v Green, 411 US 792, 802-804 [1973]).

First, Longmire failed to show that he was terminated, as he himself testified in the underlying suit that he voluntarily left his former employment. In addition, based on his own allegations in the complaint and his affidavit, if he was terminated at all, it was due to his refusal to testify on his employer’s behalf in his employer’s matrimonial proceedings, and it was not due to Longmire’s race. Thus, Longmire would not have prevailed on such a claim had Warshaw pursued it in opposing summary judgment.

Warshaw’s decision not to move for reconsideration of the decision dismissing the underlying federal lawsuit was a strategic choice, and does not amount to legal malpractice because "[a]n attorney’s selection of one among several reasonable courses of action does not constitute malpractice’" (Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 [1st Dept 2011], quoting Rosner v Paley, 65 NY2d 736, 738 [1985]). [*2]

The motion court correctly rejected Longmire’s submission of an expert affidavit on the issue of whether Warshaw acted negligently (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d "