| Dombrowski v Bulson |
| 2010 NY Slip Op 09625 [79 AD3d 1587] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| Thomas E. Dombrowski, Appellant, v Raymond W. Bulson,Respondent. |
—[*1] Damon Morey LLP, Buffalo (Vincent G. Saccomando of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Allegany County (John A. Michalek, J.),entered July 17, 2009 in a legal malpractice action. The order granted the motion of defendant forsummary judgment, dismissed the complaint and denied plaintiff's cross motion for summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the motion in part and reinstating the complaint only insofar as it seeks damages fornonpecuniary loss and as modified the order is affirmed without costs.
Memorandum: In this legal malpractice action, plaintiff alleges that defendant negligentlyrepresented him in a criminal action and that, as a result of defendant's negligence, plaintiff wasconvicted following a jury trial of two felonies and one misdemeanor and was sentenced to adeterminate term of incarceration of four years plus a period of postrelease supervision. CountyCourt denied plaintiff's subsequent motion to vacate the judgment of conviction pursuant to CPL440.10 on the ground of ineffective assistance of counsel, and we denied plaintiff's motion forleave to appeal from the order denying that motion. Plaintiff thereafter commenced a proceedingin Federal District Court seeking a writ of habeas corpus, again contending that he was deniedeffective assistance of counsel. In granting the petition in that proceeding almost three years later,the Magistrate determined that defense counsel failed to conduct an adequate investigation andfailed to conduct a sufficient cross-examination of the complainant, who is plaintiff's daughter,regarding prior inconsistent statements. When the Magistrate issued his ruling, however, plaintiffhad been incarcerated for more than five years, and the prosecution declined to retry him. Theindictment was thus dismissed. Plaintiff then commenced this legal malpractice action, seekingmoney damages for his loss of liberty arising from his alleged wrongful incarceration and for lostwages.
Supreme Court granted defendant's motion for summary judgment dismissing the complainton the ground that plaintiff has no right to recover any money damages. With respect to loss ofliberty, the court determined that damages for such nonpecuniary loss are not recoverable in alegal malpractice action and, with respect to lost wages, the court determined that plaintiff wasestopped from seeking such damages because he had been deemed disabled by [*2]the Social Security Administration prior to his incarceration andhad received disability payments while incarcerated. We conclude that the court erred indetermining that plaintiff is not entitled to seek damages for nonpecuniary loss arising from hisloss of liberty, and we therefore modify the order accordingly. We further conclude, however,that the court properly granted that part of defendant's motion with respect to damages for lostwages, in view of plaintiff's receipt of disability payments while incarcerated.
"To establish a cause of action to recover damages for legal malpractice, a plaintiff mustprove that the defendant attorney failed to exercise 'the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal community, and that the attorney's breach of [that]duty proximately caused plaintiff to sustain actual and ascertainable damages' " (Velie v Ellis Law, P.C., 48 AD3d674, 675 [2008], quoting Rudolf vShayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). It is well settledthat nonpecuniary damages are not recoverable in a legal malpractice action involving thenegligence of an attorney in a civil matter (see e.g. Wolkstein v Morgenstern, 275 AD2d635, 637 [2000]; Dirito v Stanley, 203 AD2d 903 [1994]). Here, however, the issuebefore us is whether that rule should also apply to legal malpractice actions where the underlyingmatter is criminal rather than civil in nature. The only New York appellate court decision onpoint is that of the First Department in Wilson v City of New York (294 AD2d 290[2002]), which held that recovery of nonpecuniary damages is not permitted. In our view, thereasoning of the First Department in Wilson is not persuasive, and we therefore declineto follow the holding in Wilson.
"It is fundamental to our common-law system that one may seek redress for every substantialwrong. 'The best statement of the rule is that a wrong-doer is responsible for the natural andproximate consequences of his [or her] misconduct' " (Battalla v State of New York, 10NY2d 237, 240 [1961]; see Derby v Prewitt, 12 NY2d 100, 105-106 [1962]). Whereemotional or other nonpecuniary loss is a direct result of a defendant's breach of duty, a plaintiffmay recover damages for such loss (see generally Martinez v Long Is. Jewish Hillside Med.Ctr., 70 NY2d 697, 699 [1987]; Kennedy v McKesson Co., 58 NY2d 500, 504-506[1983]). The risk of imprisonment is a direct result of attorney malpractice in a criminal case and,indeed, it is the primary risk involved in most criminal cases. In our view, a cause of action forcriminal legal malpractice is analogous to causes of action for false arrest and maliciousprosecution, both of which allow recovery for the plaintiff's loss of liberty resulting from theplaintiff's wrongful incarceration (seeStrader v Ashley, 61 AD3d 1244 [2009], lv dismissed 13 NY3d 756 [2009];Lynch v County of Nassau, 278 AD2d 205 [2000]; see generally Britt v Legal AidSocy., 95 NY2d 443, 448 [2000]). We thus conclude that a plaintiff who establishes that heor she was wrongfully convicted due to the malpractice of his or her attorney in a criminal casemay recover compensatory damages for the actual injury sustained, i.e., loss of liberty, and anyconsequent emotional injuries or other losses directly attributable to his or her imprisonment.
We note in addition that the recent trend in other states with respect to this issue is in favor ofallowing recovery for loss of liberty in criminal legal malpractice cases, even in those states that,in conformity with the general rule, do not otherwise allow recovery of nonpecuniary damages inmalpractice actions (see e.g. Wagenmann v Adams, 829 F2d 196, 221-222 [1st Cir1987]; Snyder v Baumecker, 708 F Supp 1451, 1464 [NJ Dist 1989]; Rowell vHolt, 850 So 2d 474 [Fla 2003]; Holliday v Jones, 215 Cal App 3d 102, 118-119,264 Cal Rptr 448, 458 [1989]). As has been noted, "[w]hen an attorney's negligence causes aclient's loss of liberty, courts have been willing to step away from the general rule barringdamages for emotional distress. Generally, these cases hold that when an attorney represents acriminal defendant, incarceration is the foreseeable result of negligence. Accordingly, damagesfor the mental anguish arising from that foreseeable result, a non-pecuniary damage, should notbe barred" (Rhoades and Morgan, Recovery for Emotional Distress Damages in AttorneyMalpractice Actions, 45 SC L Rev 837, 845 [1994]; see also Barry, LegalMalpractice in Massachusetts: Recent Developments, 78 Mass L Rev 74, 82 [1993] [*3]["Courts in other jurisdictions have frequently held that emotionaldistress damages are recoverable where the attorney's malpractice results in the client's wrongfuldeprivation of liberty," noting cases in Massachusetts, New Jersey and California]).
Finally, with respect to plaintiff's remaining contentions, we conclude that the mere fact thatthe Federal Magistrate in granting his petition for a writ of habeas corpus determined that he wasdenied effective assistance of counsel does not establish plaintiff's innocence as a matter of law,nor does it have collateral estoppel effect on the issue of causation. Present—Smith, J.P.,Peradotto, Lindley, Sconiers and Pine, JJ.