Fourth Department Expands Damages Available in Legal Malpractice Cases with Underlying Criminal Matters
The Fourth Department recently held that a plaintiff is entitled to seek damages for nonpecuniary loss arising from loss of liberty in a legal malpractice action arising out of representation in a criminal matter.
In Dombrowski v. Bulson, 79 A.D.3d 1587, 915 N.Y.S.2d 778 (4th Dep’t 2010), the plaintiff alleged that the defendant negligently represented him in a criminal proceeding. As a consequence of the defendant’s negligence, the plaintiff alleges that he was convicted following a jury trial and sentenced to four years in prison plus a period of post-release supervision.
Following an unsuccessful attempt to vacate the judgment of conviction on the ground of ineffective assistance of counsel, the plaintiff commenced a proceeding in Federal District Court seeking a writ of habeas corpus, again contending that he was denied effective assistance of counsel. The Court granted the writ and concluded that defense counsel failed to, among other things, conduct an adequate investigation.
Thereafter, the plaintiff commenced the instant legal malpractice action seeking money damages for his loss of liberty arising from his alleged wrongful incarceration and for lost wages. The Supreme Court granted the defendant’s motion for summary judgment, holding that “damages for such nonpecuniary loss are not recoverable in a legal malpractice action.” Id. at 1588, 915 N.Y.S.2d at 779.
On appeal, the Fourth Department held that the motion court erred in its determination that the plaintiff is not entitled to seek damages for nonpecuniary loss arising from his loss of liberty. Although it is well established that nonpecuniary damages are not recoverable in a legal malpractice action in connection with an underlying civil matter, in Dombrowski, the Fourth Department analyzed whether this principal applied to a legal malpractice action with an underlying criminal matter. Id., 915 N.Y.S.2d at 780. The First Department addressed this very issue in Wilson v. City of New York, 294 A.D.2d 290, 743 N.Y.S.2d 30 (1st Dep’t 2002), holding that the recovery of nonpecuniary damages is not permitted. However, the Fourth Department declined to follow the holding in Wilson.
In rendering its decision, the Fourth Department analogized a criminal legal malpractice action to causes of action for false arrest and malicious prosecution, both of which permit recovery for the plaintiff’s loss of liberty resulting from the plaintiff’s wrongful incarceration. Id. at 1589, 915 N.Y.S.2d at 780. The Court further observed that in a criminal case, the risk of imprisonment is a direct result of attorney malpractice. Consequently, the Fourth Department concluded:
a plaintiff who establishes that he or she was wrongfully convicted due to the malpractice of his or her attorney in a criminal case may recover compensatory damages for the actual injury sustained, i.e. loss of liberty, and any consequent emotional injuries or other losses directly attributable to his or her imprisonment. Id. at 1590, 915 N.Y.S.2d at 780.
As a result of Dombrowski, New York courts are now conflicted regarding recovery of nonpecuniary damages in a legal malpractice matter where the underlying matter is criminal in nature. Therefore, this issue may find its way to the Court of Appeals in the near future.
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