Failure To Pursue Meritorious Appeal Dooms Malpractice Claim

A client who had retained a law firm to pursue a medical malpractice failed to appeal the dismissal of the underlying action, thus precluding a legal malpractice claim per a decision of the New York Appellate Division for the Second Judicial Department

The plaintiff retained the defendants to commence a medical malpractice action against the plaintiff’s medical providers who performed a surgery in December 2011 to repair the plaintiff’s fractured jaw (hereinafter the underlying action). The defendants retained the services of two experts and served expert disclosures on the medical providers pursuant to CPLR 3101(d). On the day the trial was scheduled to begin, the Supreme Court granted the medical providers’ motion in limine to preclude all testimony from the plaintiff’s experts on the ground that the medical providers had not been served with a report of the experts’ physical examination of the plaintiff pursuant to 22 NYCRR 202.17 and directed dismissal of the complaint in the underlying action.

The client sued the lawyers and did not appeal the dismissal.

But

By establishing that the client failed to pursue an appeal in the underlying action and 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” (Buczek v Dell & Little, LLP, 127 AD3d at 1124).

…the plaintiff had sufficient time to perfect the appeal in the underlying action after terminating the defendants’ representation and failed to do so. Accordingly, the court properly granted the defendants’ motion to dismiss the amended complaint pursuant to CPLR 3211(a)(7), as the defendants were not the proximate cause of the plaintiff’s alleged damages (see Grace v Law, 24 NY3d at 210; Perks v Lauto & Garabedian, 306 AD2d 261, 262).

(Mike Frisch)