Rochester: Harvey v Handelman, Witkowicz & Levitsky, LLP  2015 NY Slip Op 05794 [130 AD3d 1439]  July 2, 2015  Appellate Division, Fourth Department  is one of the first cases decided after Grace v. Law in which the question of a “likely to succeed” appeal is discussed.

“We note at this juncture that plaintiff has abandoned any issues related to the District (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]). To establish a cause of action for legal malpractice, “a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care” (Phillips v Moran & Kufta, P.C., 53 AD3d 1044, 1044-1045 [2008] [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). “In order to prevail on a motion for summary judgment seeking dismissal of a complaint for legal malpractice, a defendant must establish that the plaintiff is unable to prove at least one necessary element of the legal malpractice action, i.e., that the plaintiff is unable to prove that he or she would have been successful on the underlying claim but for [the defendant’s] negligence” (Giardina v Lippes, 77 AD3d 1290, 1291 [2010] [internal quotation marks omitted], lv denied 16 NY3d 702 [2011]). Where a client fails to pursue an appeal in an underlying action, in order to determine whether the failure to pursue an appeal, as opposed to defendants’ negligence, was the proximate cause of the client’s injury, we must determine whether an appeal in the underlying action was “likely to succeed” (Grace v Law, 24 NY3d 203, 210 [2014]).

Here, we conclude that defendants failed to meet their burden to establish as a matter of law that any alleged negligence on their part resulting in the March 21, 2011 order dismissing of the amended complaint against the County was not a proximate cause of plaintiff’s damages (see Grace v Law, 108 AD3d 1173, 1176 [2013], affd 24 NY3d 203 [2014]). Thus, the court erred in granting the motion with respect to plaintiff’s causes of action arising out of defendants’ handling of the underlying personal injury action against the County. In support of their motion for summary judgment, defendants’ own submissions established that the action against the County was commenced 51 days after the expiration of the limitations period. While the statute of limitations set forth in General Municipal Law § 50-i was tolled from the time plaintiff commenced the proceeding to obtain leave to file a late notice of claim until the order granting that relief went into effect (see Giblin v Nassau County Med. Ctr., 61 NY2d 67, 74 [1984]), the order granting such leave was effective when entered (see Toro v City of New York, 271 AD2d 523, 523-524 [2000], lv denied 96 NY2d 705 [2001]), and the appeal from that order provided no further toll (see Dublanica v Rome Hosp./Murphy Mem. Hosp., 126 AD2d 977, 977 [1987], lv denied 70 NY2d 605 [1987]). Thus, the limitations period expired on December 10, 2008, and the amended complaint adding the County was not timely when filed on March 4, 2010 (see generally Ambrus v City of New York, 87 AD3d 341, 345 [2011]). We therefore further conclude that an appeal from the order dismissing the action against the County on limitations grounds had no likelihood of success.“