After a long hibernation period, Grace v. Law is now appearing more frequently in legal malpractice cases, mostly as a defense to statute of limitations arguments.  Kreutzberg v Law Offs. of John Riconda, P.C.  2022 NY Slip Op 06475  Decided on November 16, 2022  Appellate Division, Second Department is one example.  Not raised in Supreme Court, the argument that the legal malpractice case could not be brought was impermissible for the first time on appeal.

“On May 26, 2020, the plaintiff commenced the instant action to recover damages for legal malpractice, alleging that the defendants failed to first obtain the consent of the plaintiff’s workers’ compensation carrier, as required pursuant to Workers’ Compensation Law § 29(5), with regard to a settlement of a no-fault claim and personal injury action on July 2, 2009. The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. The Supreme Court granted that branch of the defendants’ motion. The plaintiff appeals.”

“The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214[6]; Tulino v Hiller, P.C., 202 AD3d at 1135), which accrues at the time the malpractice is committed, not when the client discovers it (see Shumsky v Eisenstein, 96 NY2d 164, 166; Goodman v Weiss, Zarett, Brofman, Sonneklar & Levy, P.C., 199 AD3d 659, 661; Sclafani v Kahn, 169 AD3d 846, 848).

Here, the plaintiff’s cause of action accrued on July 2, 2009, when the no-fault claim [*2]and personal injury action were settled without first obtaining the consent of the plaintiff’s workers’ compensation carrier to the settlement, as required pursuant to Workers’ Compensation Law § 29(5) (see Amodeo v Kolodny, P.C., 35 AD3d 773, 774). Thus, the defendants established, prima facie, that the time in which to commence the instant action has expired. In opposition, the plaintiff failed to raise a question of fact.

The plaintiff’s contentions regarding Grace v Law (24 NY3d 203), and the doctrine of continuous representation were not advanced before the Supreme Court in opposition to that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. Thus, these contentions are improperly raised for the first time on appeal and are not properly before this Court (see Matter of Ray v County of Suffolk, 204 AD3d 807; Martinez v City of New York, 175 AD3d 1284, 1285).”