Meralla v Goldenberg ; 2011 NY Slip Op 08656 ; Decided on November 29, 2011 ; Appellate Division, First Department  presents an unusual exception to the rule that a criminal defendant may not sue his criminal defense attorneys.  In essence, plaintiff claims serial acts of ineffective assistance of counsel, both at the trial and at the appellate levels.  As the Court determined, he waited years too long in suing the Legal Aid attorneys.
 

"Plaintiff seeks to recover for successive acts of legal malpractice allegedly committed by defendant Goldenberg, who represented him at a criminal trial at which he was convicted of murder in the second degree, and by the Legal Aid defendants, who delayed in successfully prosecuting the appeal of his conviction (see 228 AD2d 160 [1996], lv denied 88 NY2d 989 [1996] [reversing plaintiff’s conviction on the grounds of ineffective assistance of counsel]). Goldenberg seeks contribution from the Legal Aid defendants for the portion of plaintiff’s imprisonment allegedly attributable to the delay in appealing the criminal conviction. "

"Of significant interest is the finding that delay in perfecting a criminal appeal is not necessarily actionable. "Here, the bare legal assertion that the Legal Aid defendants were negligent based on the delay in prosecuting the appeal of plaintiff’s conviction is insufficient to state a cause of action for legal malpractice. The delay was clearly attributable to the preparation of the Legal Aid defendants’ motion to vacate the judgment of conviction, which was complicated by, inter alia, the fact that two separate murder trials were at issue.