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October 31, 2014

New York Adopts "Likely to Succeed" Standard for Legal Malpractice Cases Where the Underlying Matter was not Appealed

New York courts have traditionally held that an attorney may defend a legal malpractice suit on the basis that an adverse result in the underlying action was not appealed. Recently, the New York Court of Appeals addressed an issue of first impression with regard to this subject. Rather than uphold the traditional defense which typically requires all lawsuits to be appealed, the Court adopted a "likely to succeed" standard, specifying that the failure to appeal bars a subsequent legal malpractice action only where the client was likely to have succeeded on an appeal in the underlying action. Grace v. Law, 2014 NY Slip Op 07089 (October 21, 2014).

John Grace ("Grace") retained Michael Law, Esq. ("Law") to pursue a medical malpractice claim. Subsequently, Law discovered that he failed to sue a doctor individually who was a material party to the lawsuit. Upon discovering this fact, Law was forced to withdraw as counsel because of a conflict of interest. Grace's subsequent attorney, Robert Brenna, Jr., Esq. ("Brenna") amended the Complaint to name the doctor as a primary defendant in the lawsuit.

The doctor successfully moved for summary judgment alleging that the claims against him were time-barred. Grace did not appeal. Further, as the likelihood of prevailing against the remaining defendant was minimal, Grace discontinued the lawsuit.

Grace then sued Law and Brenna for legal malpractice. Law asserted an affirmative defense claiming that Grace was estopped from commencing the lawsuit as he failed to appeal the decision granting the summary judgment motion in favor of the defendant. Law and Brenna both moved for summary judgment, and their motions were subsequently denied.

The Appellate Division affirmed the Supreme Court's decision holding that the "defendants failed to establish that plaintiff was likely to succeed on appeal"¦ and, therefore, that their alleged negligence was not a proximate cause of his damages." Grace v. Law, 108 A.D.3d 1173 (4th Dep't 2013). On appeal to the Court of Appeals, Law and Brenna urged the Court to hold that a failure to pursue an underlying appeal bars a claim for legal malpractice.

The Court of Appeals agreed with the Appellate Division, making "likely to succeed" the new standard in legal malpractice claims where there is a question over an appeal that has not been taken in the underlying matter. Now, if the plaintiff is not likely to succeed on the appeal, he or she may bring the legal malpractice action without first pursuing the appeal of the underlying action. The Court opined that this standard is the "most efficient and fair for all parties."

In future cases, plaintiffs will no longer be required to go through the appeal process for cases with little chance of success (i.e. Statute of Limitations), prior to suing for malpractice. In order to utilize this defense in circumstances where an appeal could be meritorious, defendants will now need to provide sufficient evidence to show that the plaintiff would have been successful on the underlying appeal, thus defeating the malpractice claim.

If you require further information regarding the content of this alert, please contact David B. Cabaniss, Chair of our Professional Liability Practice Area, at (518) 429-4279 or


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