In a case of first impression the New York Court of Appeals in Grace v. Law held that failure of the plaintiff to appeal an underlying adverse ruling does not bar a subsequent legal malpractice claim, unless the attorney-defendant can prove that plaintiff would have been "likely to succeed" in his appeal.1 The Court of Appeals' ruling, according to Judge Sheila Abdus-Salaam who wrote the unanimous decision, brings New York in accord with the majority of other states' highest courts which have addressed the issue.
In response to the appellants' contention that the "likely to succeed standard" would require a lay jury to predict an appellate outcome, Judge Abdus-Salaam wrote that this is the same type of analysis a jury must engage in to determine whether a malpractice plaintiff would have succeeded in the underlying action "but for" the attorney's malpractice.
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