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D'Alessandro v. Carro

Sup Ct, New York County

July 25, 2013

Index No. 100135/2011

Unpublished Opinion



Papers Numbered

Defendants Notice of Motion to Renew Pursuant to CPLR 9 2221(e) and Dismissing

Plaintiffs Claims for Non-Pecuniary Losses ..................1.

Affirmation of Defendants’ Counsel in Support of Defendants’ Motion to Renew with Exhibits “ A through “I”................2.

Defendants’ Memorandum of Law in Support of Defendants’ Motion ..........................3.

Affirmation of Plaintiffs Counsel in Opposition to Defendants’ Motion with Exhibits “A through “F” .........................4.

Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion to Renew ............. 5.

Reply Affirmation of Defendants’ Counsel in Further Support of Defendants’ Motion ..................6.

Transcript of Oral Argument of March 18, 201 3 ........................7.

In this legal malpractice action, defendants John Cairo, John S. Cairo, Bartly Mitchell, Dasil Elius Velez, Cairo, Carro & Mitchell, LLP and Carro, Velez, Cairo & Mitchell, LLP (collectively, "defendants"), move in motion sequence 002, pursuant to CPLR § 2221(e), for an order granting defendants' motion for renewal of a February 29, 2012 decision and order, and upon renewal, dismissing plaintiffs claims for nonpecuniary damages. In motion sequence 003, the defendants move to compel discovery. After oral argument on March 18, 2013, motion sequence 003 was granted in part and denied in part. (Transcript, at 33-36).


The facts of this case were discussed at length in the February 29, 2012 decision and order (D'Alessandro v Carro, 34 Misc.3d 1242[A] [Sup Ct, NY County 2012, Goodman, J.]) ("Prior Order" or "Justice Goodman's Order") and will not be repeated here. Briefly stated, and as relevant to this motion, plaintiff Giuseppe D'Alessandro ("D'Alessandro" or "plaintiff), was indicted for kidnaping in 1989. In 1990, D'Alessandro's trial counsel made a motion to dismiss based on a violation of his speedy trial rights, which motion was erroneously denied. Thereafter, D'Alessandro was convicted and spent more that 14 years in prison. In 1995, defendants, as D'Alessandro's appellate counsel, appealed his conviction but the Appellate Division denied the appeal and affirmed the conviction. It is undisputed that defendants failed to raise the violation of D'Alessandro's speedy trial rights on appeal.

In 2010, on a writ of error coram nobis, the First Department reversed D'Alessandro's conviction and dismissed the indictment in its entirety on the ground that the conviction was obtained in violation of D'Alessandro's speedy trial rights. (People v D 'Alessandro, 2010 Slip Op 75591 [U] [1st Dept 2010].) The Appellate Division found that the speedy trial argument was "clearly meritorious, " the violation was "clear cut and dispositive" and should have been raised by the defendants on appeal but was not. Thereafter, D'Alessandro commenced this action seeking millions of dollars in damages, alleging that defendants' failure to raise the speedy trial issue constitutes legal malpractice.

In April 2011, defendants filed a motion to dismiss the complaint for failure to state a cause of action. Alternatively, defendants sought dismissal of plaintiff s nonpecuniary damage claims[1]on the ground that nonpecuniary damages were not properly recoverable in a legal malpractice action. By decision and order dated February 29, 2012, Justice Goodman denied the dismissal motion in its entirety. (D 'Alessandro, 34 Misc.3d 1242.) Justice Goodman recognized that there was a split in authority among the appellate divisions in New York on the issue of recovery of nonpecuniary damages in criminal legal malpractice matters. Specifically, Justice Goodman acknowledged the First Department decision in Wilson v City of New York (294 A.D.2d 290, 292-293 [1st Dept 2002]) which held that "a cause of action for legal malpractice does not afford recovery for an item of damages other than pecuniary loss [internal quotations and citations omitted]." However, Justice Goodman rejected Wilson as somewhat outdated and adopted the holding in a Fourth Department case, Dombrowski v Bulson (79 A.D.3d 1587, 1590 [4th Dept 2010]), for the proposition that "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." Justice Goodman reasoned that "[p]laced in the current context, if the Appellate Division, First Department had the occasion to revisit the instant case . . . where ... the issue of damages is central, perhaps it would be viewed differently" (D'Alessandro, 34 Misc.3d at *4).

On March 21, 2012, defendants filed a notice of appeal from Justice Goodman's Order. Thereafter, on May 31, 2012, the Court of Appeals reversed the Fourth Department's decision in Dombrowski, holding that in a civil or criminal matter, nonpecuniary damages "are not available in an action for attorney malpractice" (Dombrowski v Bulson, 19 N.Y.3d 347, 349 [2012]). On January 7, 2013, about six months after the Court of Appeals' definitive ruling in Dombrowski, defendants filed the instant motion to renew. Thereafter, on January 14, 2013, plaintiff moved the First Department for an order dismissing defendant's appeal for lack of prosecution. The motion was granted, without opposition, on February 28, 2013 (Exhibit "F" to Affirmation of Plaintiff s Counsel Brian Gardner, Esq., in Opposition to Defendants' Motion to Renew).


In support of the renewal motion, defendants argue that the Court of Appeals reversal of the Fourth Department's ruling in Dombrowski effectuated a change in the law and necessarily requires dismissal of plaintiff s nonpecuniary damage claims because such damages are not recoverable in a legal malpractice action. In opposition to the renewal motion, plaintiff sets forth two procedural and one substantive argument. Plaintiff contends that the Court of Appeals decision in Dombrowski did not change the law because at the time of Justice Goodman's Order, there was a First Department case which held that nonpecuniary damages were not available in legal malpractice matters. Plaintiff also argues that this renewal motion is a disguised reargument motion which is time barred. Substantively, plaintiff argues that defendants are barred from seeking renewal because the First Department's February 28, 2013 dismissal of the appeal for failure to prosecute precludes any further judicial review of the Prior Order.


CPLR § 2221(e) requires, in pertinent part, that a motion for leave to renew:

1. shall be identified specifically as such;
2. shall be based on new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and
3. shall contain reasonable justification for the failure to present such facts on the prior motion.

A motion for leave to renew is the proper vehicle for seeking relief from an order based on a change in the law or a clarification of decisional law (Dinallo v DAL Elec, 60 A.D.3d 620, 621 [2d Dept 2009]; Roundabout Theatre Co. v Tishman Realty & Constr. Co., 302 A.D.2d 272, 272 [1st Dept 2003]).

In Dombrowski v Bulson (19 N.Y.3d 347 [2012]), the Court of Appeals recognized the split in authority between the First Department's decision in Wilson v City of New York (294 A.D.2d 290 [1st Dept 2002]) and the Fourth Department's decision in Dombrowski (79 A.D.3d 1587 [4th Dept 2010]) and clarified the law by reversing Dombrowski and definitively ruling that nonpecuniary damages are not available in actions for civil or criminal attorney malpractice.

Even though CPLR § 2221 requires that a motion for renewal and/or reargument must be "identified specifically as such, " many practitioners routinely use these specific terms interchangeably. Moreover, it was been the prevailing practice to permit a motion for reargument at any time so long as a notice of appeal has been timely filed. Therefore, this Court will not entertain the above procedural arguments, but will decide the motion on substantive grounds.

Failure to Prosecute

More than thirty-five (35) years ago, the Court of Appeals first held that a prior dismissal of a civil appeal for failure to prosecute "acts as a bar to a subsequent appeal as to all questions that were prosecuted on the earlier appeal" (BrayvCox, 38 N.Y.2d 350, 353 [1976].) The Court imposed this penalty because the "securing of leave to appeal might become a stratagem for appellants, to be utilized for the purpose of delaying enforcement of judgements and the inevitable payment of just debts and obligations." (Id.) The Court concluded that appellants should not have two opportunities to appeal on identical issues. (Id.) Ten years later, the Court of Appeals applied the Br ay holding to a criminal appeal because permitting a subsequent appeal on the same issue would "encourage laxity" and "foster disrespect and indifference toward our rules and orders." (People v Corley, 67 N.Y.2d 105, 109 [1986]).

About 13 years later, the Court of Appeals firmly reiterated its prior holdings in Bray and Corley as it would not condone the abandonment of appeals due to "laxity" and "disrespect toward court procedures." (Rubeo v National Grange Mutual Insurance Co., 93 N.Y.2d 750 [1999].) The Court sent a clear and powerful message that "the filing of an appeal is not "inconsequential" because the appellant may be precluded from a subsequent appeal due to the prior "abandoned" appeal. (Id. at 757). More recently, the First Department held that "[a]n appeal that has been dismissed for failure to prosecute bars, on the merits, a subsequent appeal as to all questions that could have been raised on the earlier appeal had it been perfected " (Grogan v Gamber Corp., 78 A.D.3d 571 [1st Dept 2010].)

Defendants cite Ferrizz v Jahelka, (125 A.D.2d 537 [2nd Dept 1986]), as an exception to the Bray holding and its progeny. In reality, when looking at the facts and time-line of events in Ferrizz, it is apparent that this case is inapposite and has limited value in distinguishing the Bray holding. In Ferrizz, the trial court denied plaintiffs motion to amend the complaint on March 22, 1984 ("March 1984 Order"), and the plaintiff filed an appeal from said order. In July 1985, plaintiff made a motion to reargue the prior order denying the amendment of the complaint based on an intervening change in the law. On July 25, 1985, the trial court granted plaintiffs motion for reargument and, in effect, vacated and recalled its prior March 1984 Order and granted the amendment ("July 1985 Order"). Thereafter, on October 2, 1985, the Appellate Division dismissed plaintiffs appeal of the March 1984 Order for lack of prosecution. Based on the above time line, the Appellate Division held that "this crucial fact clearly distinguishes the case at bar" from Bray and its progeny. (Id. at 537-538.)

Defendants misinterpret the Ferrizz holding to suggest that as long as the plaintiffs motion to reargue was made prior to the appellate court's order dismissing plaintiffs appeal for lack of prosecution, it does not serve as a bar to a subsequent appeal. In fact, the distinguishing feature in Ferrizz is that on July25, 1985, the trial court had already vacated and recalled its prior March 1984 Order, more than two months prior to the Appellate Division's October 2, 1985 dismissal of the appeal. Simply stated, the March 1984 Order, which was being appealed had already been vacated and recalled by the subsequent July 1985 Order so that when the appellate court dismissed the appeal of the March 1984 Order, that order was no longer effective, having been superseded by the July 1985 Order. (See Chapman vBachelis, 102 A.D.2d 761 [1st Dept 1984]); MastanCo., Inc. v Weil, 84 A.D.2d 657 [3d Dept 1981]; cf. Spectrum Painting Contrs., Inc. v Kreisler BorgFlorman General Constr. Co., Inc., 54 A.D.3d 748 [2d Dept 2008] [appeal from original order dismissed without prejudice as that order was superseded by entered order made upon reargument].) Therefore, the dismissal of the appeal of the March 1984 Order was not a bar to the subsequent appeal of the new, superseding July 1985 Order.

Notwithstanding the above, it is also quite clear that a court may exercise discretion to change its own prior order including a dismissal for lack of prosecution. "Every court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made" (Aridas v Caserta, 41 N.Y.2d 1059, 1061 [1977]). This is certainly true with respect to a motion for renewal and/or reargument. In Manocherian v Lenox Hill Hosp. (229 A.D.2d 197, 202-203 [ 1 st Dept 1997]), the First Department held it was not an abuse of discretion for the trial court to entertain a motion for reargument which was brought prior to a entry of the First Department's judgment on the initial decision, and raised unforseen questions of law at the time that they submitted their appeal. It further stated, "[a] motion court's decision whether to grant or deny a motion for reargument is firmly within its discretion and should only be disturbed where such discretion has been abused." (Id. at 203.)

While defendants are correct that every trial court has the inherent discretion to change its own decisions, that is only true prior to an appellate determination on the merits of the case. In other words, this Court no longer can grant renewal of the Prior Order due to the subsequent order of the Appellate Division which operated as a dismissal of the appeal on the merits. However, the Appellate Division is not so constrained to review its own dismissal of the Prior Order for lack of prosecution.

Moreover, defendants have not provided any reason for their failure to forestall the dismissal of the appeal and the court's exercise of its discretion. Defendants had many options to avoid this result such as: (1) timely perfecting the appeal, (2) seeking an extension to perfect the appeal, or (3) simply withdrawing the appeal. Instead, the Appellate Division was required to issue an order dismissing the abandoned appeal for want of prosecution.

Under these circumstances, this Court does not have the discretion to grant defendants' motion for renewal after the Appellate Division has dismissed the appeal of the Prior Order for lack of prosecution, which operated as a dismissal on the merits.


Accordingly, it is hereby

ORDERED that defendants' motion for renewal is denied. The foregoing constitutes the decision and order of this Court.

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