4th Department: Grace v. Law

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This appeal addressed whether a defendant waives or abandons a legal malpractice claim (1) after voluntarily discontinuing the foundational medical malpractice action, and (2) by not appealing a trial court’s order that significantly reduced his original claim.

Plaintiff John Grace commenced a legal malpractice action against Robert L. Brenna, Jr. and Brenna, Brenna & Boyce, PLLC (“the Brenna defendants”), and Michael R. Law and Phillips Lytle, LLP (“the Law defendants”). Plaintiff alleged that the defendants were negligent in representing him in regards to a medical malpractice action arising from his treatment for an eye condition at the Veterans Administration Outpatient Clinic in Rochester (“VA”).

In 2006, after the VA treatment, the Brenna defendants commenced an administrative tort action on behalf of Plaintiff against the United States. Six months later, the Brenna defendants recommended that Plaintiff retain the Law defendants to pursue a federal medical malpractice claim under the Federal Tort Claims Act, which was subsequently filed in the District Court for the Western District of New York. A conflict later arose, causing the Law defendants to shift sole responsibility for the federal medical malpractice suit to the Brenna defendants.
The District Court dismissed the federal medical malpractice claim against the VA, finding that the primary treating physician was an independent contractor and not an employee of the VA. Plaintiff then instructed the Brenna defendants to discontinue the federal action, despite remaining claims, and brought this legal malpractice claim alleging that the defendants were negligent in failing to name the primary treating physician and his employer—the University of Rochester—in the initial complaint in federal court.

The appellate division rejected the defendants’ argument that Plaintiff had waived or abandoned his legal malpractice claim by voluntarily discontinuing the remaining claim of his medical malpractice action and by failing to appeal from the federal district court ruling that dismissed the majority of his claims. Further, the court rejected the defendants’ proposed expansion of a per se rule that this type of action should bar a defendant from being able to bring a legal malpractice claim. The court reasoned that such an expansion (1) would force parties to prosecute meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action; (2) would increase the cost of litigation and overburden the court system; (3) could result in expiration of the statute of limitations on the legal malpractice claim; and (4) could discourage settlements by requiring parties to exhaust the appellate process.

Additionally, the defendants failed to establish that any negligence on their part was not a proximate cause of the plaintiff’s damages. The court affirmed the denial of the Law defendants’ motion to dismiss the claim as time-barred because Plaintiff raised a triable issue of fact whether the continuous representation doctrine applied to toll the statute of limitations.

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108 A.D.3d 1173, 969 N.Y.S. 2d 661 (4th Dep’t 2013)

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