NY – Failure to Pursue Appeal that “Likely” Would Have Been Successful Bars Legal Malpractice Claim
By Will Jordan
Client filed a legal malpractice action against Law Firm asserting, in part, that Law Firm was negligent in allowing the underlying case to be dismissed for failure to prosecute. Law Firm moved to dismiss on the ground that the trial court’s dismissal of the underlying case was improper and likely would have been reversed on appeal. The appellate court agreed, noting that “[t]he failure to pursue an appeal in an underlying action bars a legal malpractice action where the client was likely to have succeeded on appeal in the underlying action.” In essence, establishing that the appeal was likely to have succeeded destroys proximate causation — the client’s failure to appeal, and not the alleged preceding negligence of the attorney, caused any damage the client suffered.
Buczek v. Dell & Little, LLP (N.Y. Supreme Court, Appellate Division, April 29, 2015).
Read the full opinion here.