Practice point: A cause of action does not sound in legal malpractice based on defendant's representation of plaintiff in a criminal action when the conviction has not been successfully challenged.
Practitioners should note that, even when an appeal is pending, pursuant to CPL 440, there is no cause of action unless plaintiff ultimately succeeds in having the underlying conviction vacated and the indictment dismissed.
Case: Daly v. Peace, NY Slip Op 06955 (2d Dept. 2008)
The opinion is here.
