IAN BROWNELL, Respondent, v ROGER LECLAIRE, as Sheriff of Washington County, et al., Appellants
Appellate Division of the Supreme Court of New York, Third Department
948 NYS2d 168
Kavanagh, J.
In September 2001, the residence of plaintiff‘s employer, which was located in the Town of Jackson, Washington County, was burglarized and more than $20,000 was stolen. During the investigation that followed, fingerprints bearing a marked similarity to plaintiff‘s were recovered at the crime scene. Later, upon being questioned by police, plaintiff allegedly gave a statement admitting that he had entered the premises with another individual without permission and, while inside, damaged some personal property. Plaintiff was arrested and subsequently charged by indictment with burglary in the second degree and criminal mischief in the fourth degree.1 Defendant Kelly S. McKeighan represented plaintiff on the criminal charges and ultimately negotiated a plea agreement where, in return for a guilty plea to attempted burglary in the second degree, plaintiff would be adjudicated a youthful offender and sentenced to time served, plus five years of probation, and would be required to make restitution.2 Prior to plaintiff being sentenced in March 2002, McKeighan informed him that he had accepted a position at the District Attorney‘s office of Washington County and could no longer represent plaintiff. As a result, new counsel represented plaintiff at sentencing, and plaintiff was sentenced in accord with the plea agreement.
In December 2006, plaintiff‘s conviction was vacated after another individual—Kenneth Happ—told police that he had com
The claims against the County defendants should have been dismissed. Personal injury claims against a municipal defendant must be commenced within a year and 90 days from when they accrued (see
However, plaintiff‘s claim for malicious prosecution did not accrue until the judgment of conviction was vacated in December 2006 (see Bumbury v City of New York, 62 AD3d 621, 621 [2009]; Nunez v City of New York, 307 AD2d 218, 220 [2003]; Farber v County of Hamilton, 158 AD2d 902, 903 [1990]) and, as a result, the notice of claim was timely filed and the underlying action was commenced within the statutory time limits. As for the merits of plaintiff‘s claim based on malicious prosecution, to prevail, he must establish “that a criminal proceeding was
As for his claim against McKeighan, plaintiff argues that McKeighan was negligent when he represented him and advised him to plead guilty to a crime he did not commit. In that regard, plaintiff sought damages for personal and psychological injuries, as well as other nonpecuniary losses he claims to have incurred as a result of his incarceration and wrongful conviction. A defendant in a criminal prosecution cannot recover for nonpecuniary damages that occur as a result of legal malpractice and, therefore, these claims made by plaintiff against McKeighan must be dismissed (see Dombrowski v Bulson, 19 NY3d 347 [2012]). However, McKeighan‘s motion papers fail to address plaintiff‘s claim that he sustained economic damages as a result of McKeighan‘s alleged legal malpractice. As a result, while we have serious reservations about the validity of these claims, we are, at this stage of the proceedings, constrained to find that a question of fact exists as to whether plaintiff incurred such economic damages as a result of McKeighan‘s alleged legal malpractice.
Lahtinen, J.P., Spain, Malone Jr. and McCarthy, JJ., concur.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as (1) denied the motion of defendants Sheriff‘s Department of Washington County, Washington County and Sheriff of Washington County and (2) denied defendant Kelly S. McKeighan‘s motion for summary judgment with respect to plaintiff‘s claim for nonpecuniary damages; Mc