Legal Malpractice

Failure to Appeal and Judiciary Law 487 in Legal Malpractice

By (Andrew Lavoott Bluestone)

Two of the hardest causes of action to prove and prevail upon in legal malpractice are the "failure to appeal" claim and one under Judiciary Law 487.  Failure to appeal claims are difficult because one must not only prove that the attorneys could have and failed to file an appeal, but one must also prove [to a judge and not to a jury] that the appeal would have prevailed.  Judiciary Law 487 claims, although recently cited with approval by the Court of Appeals in Amalfitano v. Rosenberg, remain in general disfavor.  Here is a case which illustrates both: McCluskey v Gabor & Gabor ;
2009 NY Slip Op 02757 ;Decided on April 7, 2009 ;Appellate Division, Second Department .
 

"Here, the plaintiff alleged, inter alia, that the defendants committed malpractice by failing to take an appeal in the underlying age discrimination action from so much of an order as dismissed his causes of action alleging fraud. We find, however, that, inasmuch as the causes of action alleging fraud were properly dismissed (see Kaufman v Torkan, 51 AD3d 977, 980; Weitz v Smith, 231 AD2d 518), the plaintiff cannot establish that the defendants committed malpractice by failing to take an appeal from that order (see Suffolk Ave. Car Wash & Lube v Oberman, 256 AD2d 75; Saferstein v Klein, 250 AD2d 831). Consequently, the Supreme Court should have granted that branch of the defendants' cross motion which was for summary judgment dismissing so much of the complaint as alleged that they committed legal malpractice by virtue of their failure to take an appeal from the portion of the order in the underlying action dismissing the fraud causes of action.

The defendants' alleged misconduct, even if it were proven, did not rise to a violation of Judiciary Law § 487 that would warrant the imposition of treble damages (see Gelmin v Quicke, 224 AD2d 481, 483). Consequently, that branch of the plaintiff's cross motion which was for leave to amend the complaint to add causes of action alleging a violation of Judiciary Law § 487 was properly denied as patently devoid of merit (see Lucido v Mancuso, 49 AD3d 220, 226-227, lv granted AD3d, 2008 NY Slip Op 68750[U][2d Dept 2008]; Glorioso v DeBlasio, [*3]227 AD2d 588, 589). "

Full post as published by New York Attorney Malpractice Blog on May 08, 2009 (boomark / email).