Opinion
15006 Index No. 151690/20 Case No. 2021–00925
01-11-2022
Eric HIRSCH, Plaintiff–Respondent, v. Pashman Stein WALDER et al., Defendants–Appellants.
Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for appellants. A. Cohen Law Firm, P.C., Valley Stream (Avinoam Cohen of counsel), for respondent.
Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for appellants.
A. Cohen Law Firm, P.C., Valley Stream (Avinoam Cohen of counsel), for respondent.
Renwick, J.P., Kapnick, Moulton, Kennedy, Scarpulla, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered March 1, 2021, which, to the extent appealed from, denied defendants’ motion to dismiss the legal malpractice cause of action based on an insurance claim for property damage incurred in 2014, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
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 A.D.3d 267, 272, 780 N.Y.S.2d 593 [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 A.D.2d 57, 710 N.Y.S.2d 375 [2d Dept. 2000] ). In light of this conclusion, we need not address the remaining arguments raised by defendants on appeal.