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New test applied for legal malpractice suits

October 23, 2014 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Hon. Sheila Abdus-Salaam. Photo by Mario Belluomo
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The New York State Court of Appeals has established a new test for malpractice suits against lawyers. In a ruling made public Thursday, the justices made it clear that a wronged client’s ability to bring a malpractice suit against their attorney hinges on whether or not there was a likelihood of success on the appeal of the client’s original legal matter.

The court, in an opinion written by Judge Sheila Abdus-Salaam, held that if a client is likely to succeed in the appeal of a legal case, they must have demanded that their lawyer appeal their case before bringing a suit against the lawyer for malpractice. Similarly, Abdus-Salaam wrote, if there was no likelihood that the client would succeed on appeal, the lack of demand was not a prerequisite for a malpractice suit.

The case arose from John Grace, who filed a claim against a Veterans Administration (VA) hospital for failing to timely diagnose an eye condition that left him blind in his right eye. Grace hired two law firms, Brenna, Brenna & Boyce and Michael R. Law and Phillips Lytle, to litigate the matter. A lower trial judge dismissed all but one of Grace’s claims against the VA, and the Brenna firm advised Grace that due to the cost of litigation and the unlikelihood of success, he should discontinue the medical malpractice suit against the VA.

Grace instead initiated a suit against Lytle and the Brenna firm legal malpractice.

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The issue of whether an appeal demand is required before a legal malpractice suit can commence was one of first impression for New York’s highest court. With no New York case law to answer the question, Abdus-Salaam acknowledged having to turn to the “standard employed by our sister states.” 

Brenna and Lytle argued that the likely-to-succeed test would “require courts to speculate on the success of an appeal,” a role, the attorneys contended, was inappropriate for a court not associated with the original suit. Abdus-Salaam dismissed this worry of court burden and ability, noting that “courts engage in this type of analysis when deciding legal malpractice actions generally.” 

Michael Hutter argued for Lytle and Kevin Hulslander, managing partner of the Syracuse firm Smith & Sovic, argued for Brenna. Buffalo attorney Brian Bogner of LoTempio & Brown represented Grace.

The court decided 6-0. Chief Judge Jonathan Lippman and Judges Victoria Graffeo, Susan Phillips Read, Robert Smith and Jenny Rivera joined in the ruling. Judge Eugene Pigott Jr. abstained. 


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