Grace v. Law  is the groundbreaking Court of Appeals case which said, in essence, if you have a meritorious appeal, it must be taken before starting a legal malpractice case.  Application of the doctrine has been spotty.  Leicht v Meyer, Suozzi, English & Klein, P.C.  2018 NY Slip Op 31161(U)  May 17, 2018  Supreme Court, Kings County  Docket Number: 505392/17  Judge: Carl J. Landicino is the latest in this rare breed.

“Plaintiff, a New York City sanitation worker, retained defendants to represent him in the underlying personal injury action involving an accident in which he drove his sanitation Plaintiff, a New York City sanitation worker, retained defendants to represent him in the underlying personal injury action involving an accident in which he drove his sanitation On January 19, 2010, Mack Trucks filed a third-party complaint in the underlying action against Wausau and Truis, Inc. (the manufacturer and distributor of the truck’s bumper assembly, respectively). In December, 2011, the City, Mack Trucks, Truis and Wausau moved for summary judgment dismissing the complaint. By order dated July 10, 2013, this court (Landicino, J.), granted the City’s motion for summary judgment and denied the motions of Mack, Truis and Wausau (id.).

With respect to the City, the court held that it had made a prima facie showing that the subject “low entry sanitation vehicle was a product of a discretionary decision making process and that the product was reasonably safe for its intended use” (id. at 4) and that plaintiff had failed to raise a material question of fact in opposition (id. at 5). With respect to Mack Trucks, the issue was whether the truck, as designed, was reasonably safe for its intended use. Relying upon the testimony of the witnesses forthe City, Truis, and Wausau, Mack Trucks argued that it was ‘”not liable because the vehicle it produced was designed in consultation with the City, was designed after testing the product, and was reasonably safe for its intended use'” (id. at 5-6).”

“By order dated August 12, 2015, the Appellate Division reversed the court’s  decision with respect to these three defendants and granted them summary judgment dismissing the complaint (Leicht v City ofN Y. Dep’t of Sanitation, 131 AD3d 515 [2d Dept. 2015]). In particular, with respect to Mack Trucks, the Appellate Division found that in response to Mack Truck’s primafacie showing, plaintiff had failed to raise a triable issue of fact, namely:

“Although the plaintiff submitted an expert affidavit from an engineer, the expert failed to establish that he was qualified to render an opinion as to the alleged defective design of the Class 8 heavy duty vehicle. An expert is qualified to proffer an opinion if he or she is possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. Here, the expert failed to present evidence that he had any practical experience with, or personal knowledge of, the vehicle at issue, and the expert also failed to demonstrate such personal knowledge or experience with the design or
manufacture of Class 8 heavy duty vehicles in general. Moreover, the expert’s affidavit, attributing the accident to the defective design of the vehicle, the lack of certain safety devices in the vehicle, and the failure to warn that injury could potentially occur as a result of a head-on collision, was
speculative and conclusory and, therefore, insufficient to raise a triable issue of fact” (id. at 516 [internal citations and quotation marks omitted]).

Accordingly, the Appellate Division dismissed the complaint and cross claims asserted
against Mack Trucks, and dismissed the third-party complaint and all cross claims asserted
against Wausau and Truis (id. at 517).”

On September 14, 2015, plaintiffs moved to reargue the Appellate Division’s decision or, alternatively, for leave to appeal to the Court of Appeals, which was denied by the Appellate Division by order dated December 3, 2015. By letter dated December 12, 2015, defendants memorialized their conversation with plaintiff that the Appellate Division had denied the motion to reargue, that they had advised plaintiff that his final remedy, which they could undertake on his behalf, would be to seek leave from the Court of Appeals to review the Appellate Division’s decision, and that plaintiff had decided not to go forward, which would “effectively end your personal injury case and this. law firm’s representation of you.” The letter was signed by defendant Donnalynn Darling and plaintiff (“I hereby consent and agree to the above”).”

“Relying on Grace v Law (24 NY3d 203 [2014]), defendants also argue that plaintiff failed to sufficiently allege that their purported breach of duty proximately caused plaintiff to sustain actual damages because plaintiff declined to appeal the decision of the Appellate Division to the Court of Appeals, as memorialized in the December 12, 2015 letter signed by defendant Donnalynn Darling and plaintiff (supra). ”

“In Grace, the Court of Appeals addressed the question: “What does a client’s failure to pursue an appeal in an underlying action have on his or her ability to maintain a legal malpractice lawsuit?” (id. at 206). The court adopted the “likely to succeed standard,” namely:
“prior to commencing a legal malpractice action, a party who is
likely to succeed on appeal of the underlying action should be
required to press an appeal. However, ifthe client is not likely
to succeed, he or she may bring a legal malpractice action
without first pursuing an appeal of the underlying action” (id. at
210).

Here, defendants argue that the Appellate Division’s dismissal of plaintiffs claim against Mack Trucks was contrary to the law and the facts of this case, and therefore an appeal would likely have been successful. However, Grace addresses appeals to the Appellate Division, not the Court of Appeals, i.e. the “likely to succeed standard . . . will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attomeys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result” (id. at 210-211).

In any event, defendants have failed to establish that their appeal lies as of right to the Court of Appeals (CPLR 5601) or that the Court of Appeals would have granted plaintiff leave to appeal under CPLR 5602. Even assuming the Court of Appeals would have granted plaintiff leave to appeal the decision and order of the Appellate Division, defendants have failed to demonstrate that the appeal would have been successful, and have therefore failed to show that plaintiff’s decision to forego the appeal is fatal to his claims, as defendants argue.”