123 A.D.3d 1
N.Y. App. Div.2014Background
- D'Alessandro was convicted of kidnapping and related charges, served ~14½ years, and was released in 2007; his conviction was reversed on coram nobis in 2010 because appellate counsel failed to raise a clear speedy-trial issue.
- Plaintiff sued his former appellate counsel (defendants) in 2011 for legal malpractice, alleging the failure to raise the speedy-trial claim caused prolonged incarceration and seeking pecuniary and nonpecuniary damages (totaling $26 million).
- Defendants moved to dismiss under CPLR 3211, arguing nonpecuniary damages are unavailable in legal malpractice actions (relying on this Department’s rule in Wilson v City of New York).
- Supreme Court (Feb 29, 2012) denied the motion and permitted nonpecuniary damages, relying on Fourth Department precedent (Dombrowski) and rejecting Wilson.
- Dombrowski was later reversed by the Court of Appeals; defendants sought to renew/reargue dismissal based on the intervening change in law, but the motion court denied renewal; defendants’ appeal was dismissed as from a nonappealable denial of a reargument motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nonpecuniary damages are recoverable in legal malpractice arising from criminal representation | D'Alessandro sought emotional, reputational, consortium damages in addition to pecuniary losses | Defendants argued nonpecuniary damages are barred in malpractice suits (per Wilson) | This Department’s rule (Wilson) bars nonpecuniary damages; Supreme Court’s contrary ruling did not create a proper basis for renewal; defendants’ appeal dismissed as from a nonappealable denial of reargument. |
| Whether Supreme Court could renew its prior denial based on intervening law (Dombrowski reversal) | D'Alessandro relied on Supreme Court’s original ruling allowing nonpecuniary damages | Defendants argued Court of Appeals’ reversal of Dombrowski constituted a change in law justifying renewal under CPLR 2221(e) | No valid change in this Department’s controlling law; mere clarification does not permit renewal. |
| Whether denial of motion to reargue/renew is appealable | D'Alessandro maintained the motion denial left his claims intact | Defendants sought appellate review to correct Supreme Court’s initial error | Denial of a motion to reargue is not appealable; appeal dismissed. |
| Whether this Court should exercise discretion to review despite dismissal for failure to prosecute | N/A | Defendants asked this Court to exercise discretion (citing Faricelli) to correct error | Court declined because defendants’ motion below was essentially to reargue; no appellate review from such denial. |
Key Cases Cited
- Wilson v. City of New York, 294 A.D.2d 290 (1st Dept 2002) (holds nonpecuniary damages are not recoverable in legal malpractice actions, including criminal cases)
- Dombrowski v. Bulson, 79 A.D.3d 1587 (4th Dept 2010) (Fourth Dept allowed nonpecuniary damages in criminal malpractice)
- Dombrowski v. Bulson, 19 N.Y.3d 347 (Court of Appeals 2012) (reversed Fourth Dept and reaffirmed limiting malpractice damages to pecuniary losses)
- Faricelli v. TSS Seedman's, 94 N.Y.2d 772 (Court of Appeals 1999) (discusses court discretion to reconsider prior intermediate determinations)
- Bray v. Cox, 38 N.Y.2d 350 (Court of Appeals 1976) (precludes review of an order that was the subject of a prior dismissed appeal)
- People v. McKenna, 76 N.Y.2d 59 (Court of Appeals 1990) (time-chargeable principles under CPL 30.30 referenced re speedy-trial computation)