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Is the Legal Malpractice Plaintiff Required to Exhaust All Appeals Before Suing?

Grace v. Law, 2013 NY Slip Op 5383 – NY: Appellate Div., 4th Dept. 2013 – Google Scholar.

This is a New York case in which the defendant lawyer raised an important issue: in a legal malpractice case is the plaintiff required to exhaust all of his appeals in the underlying litigation before she can bring the legal malpractice action?

The answer is “No.”  The plaintiff is allowed to resolve or abandon the underlying case.

The underlying case was a medical malpractice case. In prosecuting that medical malpractice case, the lawyers were allegedly negligent by failing to name one doctor before the statute of limitations expired. Once the doctor was dismissed on statute of limitations grounds, the plaintiff elected to voluntarily dismiss the litigation.

Plaintiff then brought a legal malpractice case against her former lawyers. The court rejected the defense that the plaintiff failed to exhaust her appeals.  The court explained:

“As has been noted, such a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system (see Eastman, 744 So 2d at 504). The additional time spent to pursue an unlikely appellate remedy could also result in expiration of the statute of limitations on the legal malpractice claim (see MB Indus., 74 So 3d at 1181). Further, requiring parties to exhaust the appellate process prior to commencing a legal malpractice action would discourage settlements and potentially conflict with an injured party’s duty to mitigate damages (see Crestwood Cove Apts. Bus. Trust v Turner, 164 P3d 1247, 1254Eastman, 744 So 2d at 504).”

The Appellate Division affirmed the denial of summary judgment. The court appears to be saying that there was no point in continuing the underlying litigation – the statute of limitations had expired and there was no point in continuing the case.


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