Maursky v Latham 2023 NY Slip Op 04115 Decided on August 2, 2023 Appellate Division, Second Department seems to be a fair decision, yet doesn’t really say why the court reversed the grant of dismissal. Even in a setting where the attorney admits failing timely to commence the action, the question of “but for” causation has to be addressed by Plaintiff.

“The defendants, a law firm and an attorney, represented the plaintiff in connection with a disability insurance claim. The plaintiff’s disability insurance policy provided, in relevant part, that “[n]o action or suit will be brought to recover under the [policy] . . . unless it is brought within 2 years.” In her complaint, the plaintiff alleged that, “after waiting a number of years and having little communication,” the defendant Christopher D. Latham informed the plaintiff “that he had failed to sue at the appropriate time” and “had missed a crucial deadline necessary in order to maintain the suit.” The plaintiff further alleged that, “[h]ad it not been for the negligence of [the] defendant[s] in failing to meet the statutory deadline, [the] plaintiff would have prevailed in the underlying matter, being able to recover on her disability insurance claim.”

In February 2020, the plaintiff commenced this legal malpractice action. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, submitting the plaintiff’s summons and complaint, the plaintiff’s disability insurance policy, and the insurer’s denial letter dated December 31, 2016 (hereinafter the coverage denial letter). In opposition, the plaintiff submitted, among other things, an affidavit stating, inter alia, that a 2014 motor vehicle accident rendered her “disabled and unable to work,” that she retained the defendants in 2015 to appeal her insurer’s initial denial of disability insurance coverage, that she contacted the defendants multiple times “to discuss the status of [her] case,” and that Latham “assured [her] that he was handling the case effectively” until, in August 2019, Latham allegedly informed the plaintiff that he had “missed the statute of limitations.”

In an order dated June 17, 2020, the Supreme Court granted the defendants’ motion. The plaintiff appeals.”

“Here, the coverage denial letter from the plaintiff’s insurer did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) (see Bonavita v Government Empls. Ins. Co., 185 AD3d 892, 893-894; Minchala v 829 Jefferson, LLC, 177 AD3d 866, 868; cf. Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 AD3d 1026, 1028). In any event, the coverage denial letter and the plaintiff’s insurance policy did not utterly refute or conclusively establish a defense to the plaintiff’s claims (see Gruber v Donaldsons, Inc., 201 AD3d 887, 889; County of Westchester v Unity Mech. Corp., 165 AD3d 883, 885; cf. Hirsch v Walder, 201 AD3d 467, 467; Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 537). Moreover, to the extent that the complaint was vague as to the nature of the allegations of legal malpractice and otherwise deficient, the evidence submitted, including the plaintiff’s affidavit, sufficiently remedied any pleading defects and put the defendants on notice of the grounds for her [*2]cause of action alleging legal malpractice (see Lopez v Lozner & Mastropietro, P.C., 166 AD3d at 873; Harris v Barbera, 96 AD3d 904, 906; cf. Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506).”