This appeal addresses whether a client’s failure to appeal the underlying action bars the client’s legal malpractice claim, an issue of first impression for the court. In October 2002, the plaintiff, John W. Grace began receiving treatment from Dr. Shoba Boghani for an eye condition at the Veteran’s Administration Rochester Outpatient Clinic. After Dr. Boghani cancelled the plaintiff’s July 2003 appointment, he was diagnosed with neovascular glaucoma during the next appointment, which was not until approximately one year later. This condition resulted in blindness in his left eye. After learning that the blindness may have been prevented if diagnosed sooner, the plaintiff hired defendants Robert L. Brenna, Jr. and Brenna, Brenna & Boyce, PLLC (the Brenna defendants) and initiated an administrative proceeding against the VA for its failure to reschedule an appointment sooner.
Delays in the proceeding led the Brenna defendants to recommend plaintiff retain Michael R. Law and Phillips Lytle LLP (the Law defendants) to pursue a medical malpractice action against the VA, but soon after the Law defendants initiated the action in federal court, they discovered a conflict of interest: Dr. Boghani was primarily employed by the University of Rochester, one of the their existing clients. Thereafter the plaintiff returned to the Brenna defendants for representation. The plaintiff added Dr. Boghani and the University of Rochester to the existing claim against the VA, but the United States District Court found that the action was time-barred and granted defendant’s motion for summary judgment. The court also found that since Dr. Boghani was an independent contractor, there was no jurisdiction for plaintiff’s claim that the VA Clinic was liable for the Dr.’s actions. The only surviving claim was that the VA was liable for medical malpractice for failing to reschedule the plaintiff’s appointment sooner.
After the Brenna defendant’s informed the plaintiff that success on this claim was unlikely, the plaintiff retained other counsel and brought an action in state court against the Brenna and Law defendants for legal malpractice for failing to bring suit against Dr. Boghani and the University in a timely fashion.
Here, the Court adopted the plaintiff’s “likely to succeed” standard in determining whether his claim was barred because of his failure to pursue an appeal for the underlying medical malpractice claim over the defendants “nonfrivolous or meritorious” standard, which would bar a legal malpractice claim when the plaintiff failed to pursue any appeal that a reasonable attorney would pursue. The Court held that the “likely to succeed” standard would require a plaintiff to, prior to commencing a legal malpractice claim, bring an appeal for the underlying action if he or she is likely to succeed on that claim; if not likely to succeed, the plaintiff would be free to pursue a legal malpractice claim without appealing the underlying action. Under this standard, the Court held that the defendants failed to meet their summary judgment burden, that the plaintiff raised a triable issue of fact regarding the statute of limitations, and affirmed the Appellate Division’s decision to deny the defendant’s motion for summary judgment.
997 N.Y.S.2d 334 (N.Y. 2014)