GUISEPPE D‘ALESSANDRO, Respondent, v JOHN CARRO et al., Appellants.
Appellate Division of the Supreme Court of New York, First Department
September 18, 2014
992 N.Y.S.2d 520
APPEARANCES OF COUNSEL
Sullivan Gardner PC, New York City (Brian Gardner of counsel), for respondent.
OPINION OF THE COURT
TOM, J.P.
Defendants again ask this Court to overturn an order denying their motion to dismiss so much of the complaint, sounding in legal malpractice, as seeks nonpecuniary damages. Review of the initial Supreme Court order entered March 6, 2012 was precluded upon our grant of plaintiff‘s motion to dismiss defendants’ appeal for failure to prosecute. Defendants then sought to be relieved from their default in perfecting the appeal
This controversy arises out of defendants’ representation of plaintiff on appeal from his conviction for holding a former restaurant employee captive for a 24-hour period, resulting in plaintiff‘s conviction of kidnapping, assault and other charges. Plaintiff was sentenced to an aggregate term of 15 years to life (People v D‘Alessandro, 230 AD2d 656 [1st Dept 1996], lv denied 89 NY2d 863 [1996]) and served 14½ years of his sentence before being released in November 2007.
In June 2010, this Court granted plaintiff‘s application for a writ of error coram nobis, reversing the judgment of conviction and dismissing the indictment (People v D‘Alessandro, 2010 NY Slip Op 75591[U] [1st Dept 2010]). We held that appellate counsel‘s failure to raise a clear-cut speedy trial issue was dispositive of the question of effective assistance of counsel (id.). In particular, we held that the period of 196 days between the filing of plaintiff‘s omnibus motion seeking dismissal of the indictment and the time the People produced the grand jury minutes in response to the motion alone would have exceeded the 184 days during which the People were required to be ready for trial (
Plaintiff then commenced the instant legal malpractice action in January 2011. The complaint alleges that defendants’ failure to raise the speedy trial issue on appeal caused plaintiff to needlessly remain incarcerated for over 13 years. He seeks damages of $26 million, including loss of income, as well as nonpecuniary damages for emotional and physical distress, damage to reputation and loss of consortium.
However, the Supreme Court (Emily Jane Goodman, J.), on February 29, 2012, denied the motion in its entirety and allowed the claims for nonpecuniary damages to remain (34 Misc 2d 1242[A], 2012 NY Slip Op 50508[U], *6 [Sup Ct, NY County 2012]). In doing so, the motion court rejected this Court‘s rule in Wilson that nonpecuniary damages may not be sought in malpractice cases, even in the criminal context (id. at *5-6). The court noted that the “ten year old Wilson theory of damages was not adopted by the Fourth Department” (id. at *5) in the more recent decision of Dombrowski v Bulson (79 AD3d 1587 [4th Dept 2010], revd 19 NY3d 347 [2012]), which held that nonpecuniary damages may be recovered in criminal malpractice cases. Noting that D‘Alessandro would have been spared 10 years of incarceration if the direct appeal had challenged the speedy trial ruling, the court reasoned, “[I]f the . . . First Department had the occasion to revisit the instant case, or a similar one where malpractice has been established and the issue of damages central, perhaps it would be viewed differently” (34 Misc 2d 1242[A], 2012 NY Slip Op 50508[U], *5). Dombrowski was subsequently overturned on May 31, 2012 (19 NY3d 347 [2012]).
As reflected in their preargument statement (
On appeal, defendants, citing Faricelli v TSS Seedman‘s (94 NY2d 772, 774 [1999]), argue that this Court should exercise its discretion to entertain the appeal to correct an error in the motion court‘s initial ruling. In Faricelli, the defendant appealed from the denial of a motion to dismiss an action for personal injury on the ground that the plaintiff could not establish constructive notice of a hazardous condition as a matter of law (94 NY2d at 773-774). As here, the defendant‘s appeal was dismissed for failure to prosecute (id. at 774). The plaintiff was awarded damages at trial, the defendant appealed from the judgment, and the Second Department reversed, holding that the verdict was not sufficiently supported by evidence of constructive notice (id.). The Court of Appeals affirmed and acknowledged that the Second Department had discretion to entertain the second appeal even though the prior appeal on the same issue had been dismissed for failure to prosecute (id. at 773-774). The Court cited to Aridas v Caserta (41 NY2d 1059, 1061 [1977]), which states, “Every court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made.”
While defendants have denominated their motion as one seeking renewal, they identify no change in law warranting reexamination of their arguments. It is axiomatic that Supreme Court is bound to apply the law as promulgated by the Appellate Division within its particular Judicial Department (
Accordingly, the appeal from the order of the Supreme Court, New York County (Shlomo S. Hagler, J.), entered July 30, 2013, which, to the extent appealed from, denied defendants’ motion to reargue, improperly denominated a motion to renew, their motion to dismiss plaintiff‘s claims for nonpecuniary damages, should be dismissed, without costs, as taken from a nonappealable order.
Tom, J.P., Andrias, DeGrasse and Richter, JJ., concur.
Appeal from order, Supreme Court, New York County, entered July 30, 2013, dismissed, without costs, as taken from a nonappealable order.