| Arnold v Devane |
| 2014 NY Slip Op 08534 [123 AD3d 1202] |
| December 4, 2014 |
| Appellate Division, Third Department |
[*1]
| Joanne Arnold et al., Respondents, v Paul T.Devane, Appellant. |
Robert P. Roche, Albany, for appellant.
Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady (Gregory E. Schaafof counsel), for respondents.
Stein, J. Appeal from an order of the Supreme Court (Lynch, J.), entered December19, 2013 in Albany County, which denied defendant's motion for, among other things,summary judgment dismissing the complaint.
Plaintiff Gary Arnold (hereinafter plaintiff) was charged by indictment with variouscounts of sex-related crimes for which defendant was retained to represent him.Following a trial in 2009, plaintiff was convicted of all counts and, thereafter,defendant's representation was discontinued and different appellate counsel was retained.On appeal, this Court determined, among other things, that plaintiff did not receive theeffective assistance of counsel, reversed the judgment of conviction and remitted thematter for a new trial (People vArnold, 85 AD3d 1330, 1332 [2011]). Upon the People's decision not toreprosecute plaintiff, the indictment was dismissed.
Plaintiff and his wife, plaintiff Joanne Arnold (hereinafter Arnold), subsequentlycommenced this legal malpractice action against defendant. After answer, defendantmoved for summary judgment dismissing the complaint, which motion Supreme Courtdenied. Defendant now appeals and we modify.
Initially, we agree with defendant's assertion that Supreme Court should havedismissed Arnold's claims because there was no attorney-client relationship between herand defendant upon which a legal malpractice claim can be based. A legal malpracticeclaim requires the existence of an attorney-client relationship (see Huffner v Ziff, Weiermiller,Hayden & Mustico, LLP, 55 AD3d 1009, 1011 [2008]; Peak v Bartlett, Pontiff, Stewart& Rhodes, P.C., 28 AD3d 1028, 1030 [2006]; Tabner v Drake, 9 AD3d606, 609 [2004]). Here, the complaint alleges that plaintiff retained defendant to actas his attorney to defend him against the criminal charges. It does not allege anattorney-client relationship between Arnold and defendant; the entirety of Arnold's claimis derivative in nature. Thus, even when we accept as true the facts alleged in thecomplaint and accord plaintiffs the benefit of every favorable inference (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]), we are of the view that the claims asserted byArnold fail to state a cause of action for legal malpractice and should have beendismissed (see United StatesFire Ins. Co. v Raia, 94 AD3d 749, 751 [2012]). Moreover, even if we were tolook beyond the four corners of the complaint and consider Arnold's affidavit inopposition to defendant's motion, we would find that she did not have a cognizable claimbased upon an attorney-client relationship with defendant.
Turning to defendant's summary judgment motion as against plaintiff, in addition toshowing an attorney-client relationship, a legal malpractice claim also requires a"demonstrat[ion] that the attorney 'failed to exercise the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession' and that theattorney's breach of this duty proximately caused [the] plaintiff to sustain actual andascertainable damages" (Rudolfv Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007],quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]; accord Geraci v Munnelly, 85AD3d 1361, 1362 [2011]; see Meralla v Goldenberg, 89 AD3d 645, 646 [2011]; Maddux v Schur, 16 AD3d873, 874 [2005]; Tabner v Drake, 9 AD3d at 609). To be entitled tosummary judgment dismissing the complaint, a defendant must "present evidence inadmissible form establishing that plaintiff is unable to prove at least one of theseelements" (Geraci v Munnelly, 85 AD3d at 1362 [internal quotation marks andcitation omitted]). Inasmuch as defendant has not proffered any expert evidence withrespect to whether his actions met the accepted standard of care, the issue before usdistills to whether defendant met his threshold burden as to the element of eitherproximate cause or damages.
In a legal malpractice claim, proximate cause is established by demonstrating that"but for the attorney's negligence, [the plaintiff] would have prevailed in the underlyingmatter or would not have sustained any ascertainable damages" (Nomura Asset Capital Corp. vCadwalader, Wickersham & Taft LLP, 115 AD3d 228, 236-237 [2014][internal quotation marks and citation omitted]; accord Brooks v Lewin, 21 AD3d 731, 734 [2005], lvdenied 6 NY3d 713 [2006]; see Tabner v Drake, 9 AD3d at 610; see also Gioeli v Vlachos, 89AD3d 984, 985 [2011]; Bishop v Maurer, 33 AD3d 497, 498 [2006], affd 9NY3d 910 [2007]). Stated differently, "[t]he test is whether a proper defense would havealtered the result of the prior action" (Carmel v Lunney, 70 NY2d 169, 173[1987] [internal quotation marks and citation omitted]) which, in the context of acriminal action, requires proof that the criminal defendant would not have beenconvicted (see Britt v Legal Aid Socy., 95 NY2d 443, 446 [2000]). Further,"[f]or malpractice actions arising from allegations of negligent representation in acriminal matter, the plaintiff must have at least a colorable claim of actual innocence" (Dombrowski v Bulson, 19NY3d 347, 350-351 [2012]; see Britt v Legal Aid Socy., 95 NY2d at446-447). We find that a colorable claim has been demonstrated here based uponplaintiff's expressed assertions of innocence, together with our reversal of the judgmentof conviction, as well as the District Attorney's decision not to reprosecute plaintiff andthe consequent dismissal of the indictment (see generally Carmel v Lunney, 70NY2d at 173).
Although defendant acknowledges some errors in his representation of plaintiff andoffers explanations for his trial strategies and failures, he argues nevertheless that none ofhis deficiencies caused plaintiff's conviction. We reject defendant's assertion that ourprevious determination that the conviction was in accord with the weight of the evidenceprecludes a finding that plaintiff would not have been convicted in the absence ofdefendant's alleged deficiencies. Our evaluation of the weight of the evidence was basedupon the evidence as it was presented to the jury and does not resolve the question ofwhether plaintiff would have been convicted had counsel been effective. Similarly,defendant's argument that plaintiff's conviction was based on the jury's finding that thevictim was credible, and not on his own failures, ignores the fact that this Court expresslyfound defendant's representation to be ineffective, in part, because he did not sufficientlychallenge the victim's credibility or impeach the victim with her prior inconsistentstatements—actions that were essential to mount an effective defense preciselybecause "the People's case rested almost entirely upon the credibility of the victim"(People v Arnold, 85 AD3d at 1333).
In addition, in reversing the judgment of conviction, we noted, among other things,defendant's "directionless and largely ineffective" questioning of plaintiff's ownwitnesses, as well as the fact that defendant elicited testimony from those witnesseswhich served to bolster the People's case (id. at 1334). Defendant's motion isdevoid of competent proof establishing that plaintiff would have been convicted, even inthe absence of the multiple deficiencies that were described. Thus, although werecognize that, inasmuch as plaintiff was not retried and acquitted it may be difficult forhim to ultimately meet his burden of establishing at trial that he would not have beenconvicted in the absence of defendant's negligence (see Britt v Legal Aid Socy.,95 NY2d at 446-447), we find that defendant failed to meet his prima facie burden onthis motion of establishing a lack of proximate cause (compare Bixby v Somerville, 62 AD3d 1137, 1139[2009]). Therefore, the burden never shifted to plaintiff to demonstrate a triable issue offact.
Nor has defendant met his initial burden of establishing plaintiff's inability to provedamages. Contrary to defendant's argument, plaintiff has sufficiently alleged pecuniarydamages (see Dombrowski v Bulson, 19 NY3d at 350-351; Brownell v LeClaire, 96 AD3d1336, 1338 [2012]), i.e., damages that "compensate the victim for the economicconsequences of the injury" (Wilson v City of New York, 294 AD2d 290, 292[2002] [internal quotation marks and citation omitted]). We have examined defendant'sremaining contentions and find them to be lacking in merit.
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as denied that part of defendant'smotion as sought dismissal of all claims asserted by plaintiff Joanne Arnold; motiongranted to that extent and said plaintiff's claims dismissed; and, as so modified,affirmed.