There have been only a few uses of the Grace v. Law rule that if a plaintiff has a viable (“likely to succeed”) appeal, it must be taken prior to commencing a legal malpractice case. Florists’ Mut. Ins. Co., Inc. v Behman Hambelton, LLP 2018 NY Slip Op 02556 Decided on April 12, 2018 Appellate Division, First Department is the most unusual of them. Typically it is the attorney who attempts to invoke the rule against plaintiff; here, the opposite.
The First Department decided the case with the fewest words it could manage:
“Plaintiff’s contention that it was obligated to pursue an appeal of the underlying action prior to filing a legal malpractice claim is unavailing, as the appeal to the Workers’ Compensation Board was not likely to succeed (Grace v Law, 24 NY3d 203, 209-210 ). Furthermore, the Workers’ Compensation Board’s appellate decision was issued on October 29, 2013, leaving plaintiff almost two years to bring an action on the alleged malpractice, which accrued in September 2012.”