This decision has been referenced in a table in the New York Supplement.
Sullivan Gardner LP, by Brian Gardner, Esq., New York, for Plaintiff.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, by Anastasios P. Tonorezos, Esq., Thomas W. Hyland, Esq., and Jeffrey J. Cunningham, Esq., New York, for Defendants.
SHLOMO S. HAGLER, J.
In this legal malpractice action, defendants John Carro, John S. Carro, Bartly Mitchell, Dasil Elius Velez, Carro, Carro & Mitchell, LLP and Carro, Velez, Carro & 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 plaintiff's 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, N.Y. 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  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  ). On January ? 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 ...