Yesterday, the Appellate Division, First Department reversed a Manhattan Judge who refused to dismiss a legal malpractice claim against a law firm. The plaintiff alleged that he retained the law firm to sue an insurance company that disclaimed coverage for a property damage claim concerning his condominium. It was claimed that the defendant law firm failed to file suit within 2 years as required by the terms of the insurance policy. The statute of limitations for breach of contract is six years but insurance policies can modify the deadline to two years.

At the inception of the case the law firm moved to dismiss the legal malpractice claim arguing that even if they had timely filed suit against the insurer, the plaintiff would have lost anyway because the policy only provided coverage for property damage if plaintiff resided at the condominium. The appellate court agreed that the case should have been dismissed based on the documentary evidence (insurance policy) because the plaintiff did not reside at the condo as required by the policy. This result is consistent with the well settled rule that a legal malpractice plaintiff cannot recover money damages from their former attorney unless you claim and are able to prove that you would have won the lawsuit. Hirsch v Walder, 2022 WL 96992