In STEPHEN F. BRUMMER, , v THE BARNES FIRM, P.C., CELLINO & BARNES, P.C., STEPHEN E. BARNES, ROSS M. CELLINO, AND RICHARD J. BARNES, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT;2008 NY Slip Op 8831; 2008 N.Y. App. Div. LEXIS 8924 we see a discussion of legal malpractice cases centering on a failed appeal.  The rules are fundamentally different for legal malpractice cases centering on appeals and those centering on the underlying case.  One thing that is not mentioned by the court is that it remains a question of law and not a question of fact whether an appeal would succeed. Experts may not opine and no jury will be asked to answer this question; only the judge will answer it

Here, plaintiffs were defendants in the underlying case, and they sue their attorney for a failed appeal.  "Plaintiff commenced this action alleging that defendants committed legal malpractice by failing to take an appeal from an order granting the cross motion of the Town of Tonawanda (Town) for summary judgment dismissing the complaint against it in plaintiff’s underlying Labor Law action. We conclude that Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint in this legal malpractice action. ""Plaintiff failed to raise a triable issue of fact inasmuch as he "did not set forth the requisite factual allegations demonstrating that, but for defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action" (Ellsworth v Foley, 24 AD3d 1239, lv denied 6 NY3d 712; see generally Williams v Kublick, 302 AD2d 961), i.e., he failed to raise an issue of fact whether he would have prevailed on an appeal with respect to the dismissal of the complaint in the underlying action against the Town (see Lagana v Willner, 267 AD2d 210; see also Senise v Mackasek, 227 AD2d 184, 185). Indeed, the record establishes that the Town was not liable under the Labor Law because it was not the owner of the property where plaintiff was working, nor was it an agent of the owner because it did [**3] not have the authority to supervise and control the work ."