We’ve written that  Grace v. Law  is a game-changer in the legal malpractice field.  Previously, there was no obligation on plaintiff to undertake an appeal prior to commencing a legal malpractice case.  Now, after Grace it’s a new world, and nothing illustrates that point better than Buczek v Dell & Little, LLP   2015 NY Slip Op 03492   Decided on April 29, 2015
Appellate Division, Second Department.  Here, in a legal malpractice – medical malpractice case, defendants obtain dismissal even in the face of an obvious mistake they made.  The Second Department holds that an appeal could have fixed that mistake, and that plaintiffs may not now sue the attorneys over this mistake, even when it is obvious that the mistake was made by the attorneys.

“Karen Buczek, and her husband asserting a derivative cause of action, commenced this action alleging, inter alia, that the defendants committed legal malpractice in the prosecution of an underlying medical malpractice action. The plaintiffs alleged that the underlying medical malpractice action was voluntarily discontinued by the defendant attorneys insofar as asserted against North Shore University Hospital (hereinafter the Hospital) due to the defendants’ legal malpractice, and that the complaint insofar as asserted against the other defendants in the underlying action was dismissed due to the defendants’ failure to prosecute the action.

The defendants moved for summary judgment dismissing the complaint. They argued that the alleged instances of legal malpractice did not proximately cause the plaintiffs’ damages. The defendants contended that the plaintiffs’ action insofar as asserted against the Hospital would not have been successful since the Hospital staff involved in the underlying medical procedures properly carried out the directions of the attending private physicians and did not engage in any independent negligent acts. They contended, thus, that they properly consented to discontinue the action insofar as asserted against the Hospital. The defendants also contended that the court in the underlying action erred as a matter of law in dismissing the complaint insofar as asserted against the other defendants for failure to prosecute. The defendants argued that if the plaintiffs had appealed from the order dismissing the action, the order would have been reversed and the complaint insofar as asserted against the other defendants would have been reinstated. The Supreme Court denied the defendants’ motion.

The defendants also established, prima facie, that their alleged negligence in failing to prosecute the action was not a proximate cause of the damages alleged in the complaint since the plaintiffs chose not to appeal from the order that dismissed the complaint insofar as asserted against the other defendants. The failure to pursue an appeal in an underlying action bars a legal malpractice action where the client was likely to have succeeded on appeal in the underlying action (see Grace v Law, 24 NY3d 203, 206-207; see also Rupert v Gates & Adams, P.C., 83 AD3d 1393, 1396). The Court of Appeals has stated that this “likely to succeed” standard “obviate[s] premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow[s] attorneys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result” (Grace v Law, 24 NY3d at 210). By establishing that an appeal would likely have been successful, a defendant in a legal malpractice action can establish that the alleged negligence did not proximately cause the plaintiff’s damages (see id.).

Here, the defendants’ submissions demonstrated that the court in the underlying action dismissed the complaint insofar as asserted against the other defendants pursuant to CPLR 3216 in an order dated November 3, 2011. As the defendants correctly contend, that order would have been reversed on appeal since it was error, as a matter of law, to dismiss the action pursuant to CPLR 3216 where no 90-day demand had been served and where a note of issue had previously been filed and remained in effect (see Arroyo v Board of Educ. of City of N.Y.,110 AD3d 17, 20; Barbu v Savescu, 49 AD3d 678, 678; Ballestero v Haf Edgecombe Assoc., L.P., 33 AD3d 952, 953). Furthermore, the defendants adequately demonstrated that dismissal pursuant to CPLR 3404 was inapplicable since the case was not “marked off or stricken from the trial calendar” (Berde v North Shore-Long Is. Jewish Health Sys., Inc., 98 AD3d 932, 933). Accordingly, the defendants established, prima facie, that the plaintiffs were likely to have succeeded on appeal in the underlying action and that the asserted malpractice in failing to prosecute the action was a not a proximate cause of the alleged damages (see generally Grace v Law, 24 NY3d at 210). In opposition, the plaintiffs [*3]failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562).