D'Alessandro v. Carro

• Decision Date: 18 September 2014
• Citation: 992 N.Y.S.2d 520
• Court: New York Supreme Court — Appellate Division
• Parties: Guiseppe D'ALESSANDRO, Plaintiff–Respondent, v. John CARRO, et al., Defendants–Appellants.

992 N.Y.S.2d 520

Guiseppe D'ALESSANDRO, Plaintiff–Respondent,

v.John CARRO, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Sept. 18, 2014.

Furman Kornfeld & Brennan LLP, New York (A. Michael Furman of counsel), for appellants.

Sullivan Gardner P.C., New York (Brian Gardner of counsel), for respondent.

PETER TOM, J.P., RICHARD T. ANDRIAS, LELAND G. DeGRASSE, ROSALYN H. RICHTER, JJ.

TOM, J.P.

Defendants again ask this Court to overturn an order denying their motion to dismiss so much of the complaint, sounding in legal malpractice, as seeks nonpecuniary damages. Review of the initial Supreme Court order entered March 6, 2012 was precluded upon our grant of plaintiff's motion to dismiss defendants' appeal for failure to prosecute. Defendants then sought to be relieved from their default in perfecting the appeal by interposing a motion to vacate our order of dismissal, which we denied ( 2013 N.Y. Slip Op. 84113[U] [1st Dept.2013] ). On this appeal, defendants seek review of an order denying what is represented to be a motion to renew their original application to strike plaintiff's nonpecuniary damages claim, on the ground that there has been an intervening change in the law. Because the law in this Department remains what it was when the original order was issued, the predicate for a motion to renew is lacking, and the motion is one to reargue. Because no appeal lies from the denial of a motion to reargue, there is nothing for us to review at this juncture.

This controversy arises out of defendants' representation of plaintiff on appeal from his conviction for holding a former restaurant employee captive for a 24–hour period, resulting in plaintiff's conviction of kidnapping, assault and other charges. Plaintiff was sentenced to an aggregate term of 15 years to life ( People v. D'Alessandro, 230 A.D.2d 656, 646 N.Y.S.2d 792 [1st Dept.1996], lv. denied 89 N.Y.2d 863, 653 N.Y.S.2d 286, 675 N.E.2d 1239 [1996] ) and served 14 ½ years of his sentence before being released in November 2007.

In June 2010, this Court granted plaintiff's application for a writ of error coram nobis, reversing the judgment of conviction and dismissing the indictment ( People v. D'Alessandro, 2010 N.Y. Slip Op. 75591[U] [1st Dept.2010] ). We held that appellate counsel's failure to raise a clear-cut speedy trial issue was dispositive of the question of effective assistance of counsel (id. ). In particular, we held that the period of 196 days between the filing of plaintiff's omnibus motion seeking dismissal of the indictment and the time the People produced the grand jury minutes in response to the motion alone would have exceeded the 184 days during which the People were required to be ready for trial ( CPL 30.30[1][a] ). We noted that the issue of whether the time was chargeable to the People was settled law (see People v. McKenna, 76 N.Y.2d 59, 556 N.Y.S.2d 514, 555 N.E.2d 911 [1990] ) and had counsel raised the issue, his client would have prevailed ( D'Alessandro, 2010 N.Y. Slip Op. 75591[U] ).

Plaintiff then commenced the instant legal malpractice action in January 2011. The complaint alleges that defendants' failure to raise the speedy trial issue on appeal caused plaintiff to needlessly remain incarcerated for over 13 years. He seeks damages of $26 million, including loss of income, as well as nonpecuniary damages for emotional and physical distress, damage to reputation and loss of consortium.

In response, defendants moved to dismiss the complaint for failure to state a cause of action based on the documentary evidence ( CPLR 3211[a][1], [7] ). In the alternative, the motion sought dismissal of the claims for nonpecuniary damages on the ground that such damages are unavailable in legal malpractice cases. In their memorandum of law in support of the motion, defendants relied upon this Court's ruling in Wilson v. City of New York, 294 A.D.2d 290, 743 N.Y.S.2d 30 (1st Dept.2002), which likewise involved a claim arising out of the plaintiff's conviction on criminal charges and resulting incarceration. As defendants noted, Wilson holds that the bar against recovery of nonpecuniary damages in a legal malpractice action is a matter of policy not limited to the civil context ( id. at 292–293, 743 N.Y.S.2d 30 ).

However, the Supreme Court (Emily Jane Goodman, J.), on February 29, 2012, denied the motion in its entirety and allowed the claims for nonpecuniary damages to remain (34 Misc.2d 1242[A], 2012 N.Y. Slip Op. 50508[U], 2012 WL 952126, *6 [Sup.Ct., N.Y., County 2012] ). In doing so, the motion court rejected this Court's rule in Wilson that nonpecuniary damages may not be sought in malpractice cases, even in the criminal context (id. at *5–6, 743 N.Y.S.2d 30 ). The court noted that the "ten year old Wilson theory of damages was not adopted by the Fourth Department" in the more recent decision of Dombrowski v. Bulson, 79 A.D.3d 1587, 915 N.Y.S.2d 778 (4th Dept.2010), revd. 19 N.Y.3d 347, 948 N.Y.S.2d 208, 971 N.E.2d 338 (2012), which held that non-pecuniary damages may be recovered in criminal malpractice cases. Noting that D'Alessandro would have been spared 10 years of incarceration if the direct appeal had challenged the speedy trial ruling, the court reasoned, "[I]f the ... First Department had the occasion to revisit the instant case, or a similar one where malpractice has been established and the issue of damages central, perhaps it would be viewed differently" ( 2012 N.Y. Slip Op. 50508 [U], 2012 WL 952126, *5 ). Dombrowski was subsequently overturned on May 31, 2012 (19 N.Y.3d 347, 948 N.Y.S.2d 208, 971 N.E.2d 338 [2012] ).

As reflected in their preargument statement (Rules of App.Div. 1st Dept. [22 NYCRR] 8600.17), defendants were obviously aware of the error in Supreme Court's order, which was inconsistent with this Department's holding in Wilson. Defendants filed a notice of appeal in February 2012 but failed to perfect within the nine months prescribed by the rules of this Court ( 22 NYCRR 600.11 [a][3] ). Upon plaintiff's motion, the appeal was dismissed on February 28, 2013 for failure to prosecute (id. at § 600.12[b] ). In the interim, defendants moved before Supreme Court on January 7, 2013, purportedly pursuant to CPLR 2221(e), to renew their application to dismiss so much of the complaint as seeks nonpecuniary damages. Defendants noted that, the Fourth Department case relied upon by the motion court in the initial order which permitted recovery of nonpecuniary damages in instances of malpractice regarding criminal cases, had been reversed by the Court of Appeals ( Dombrowski v. Bulson, 19 N.Y.3d 347, 948 N.Y.S.2d 208, 971 N.E.2d 338 ). Accordingly, defendants maintained that there had been a change in the law that warranted revisiting their original application to dismiss the complaint ( CPLR 2221[e][2] ). In denying the motion to renew, the motion court made no ruling on its procedural foundation. Rather, the court based its decision upon the substantive ground that this Court's dismissal of the appeal from the prior order operates as a disposition on the merits, thereby precluding any reconsideration of the merits by Supreme Court (citing Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575 [1976] ; see Brown v. Brown, 169 A.D.2d 487, 564 N.Y.S.2d 166 [1st Dept.1991] ; Maracina v. Schirrmeister, 152 A.D.2d 502, 544 N.Y.S.2d 13 [1st Dept.1989] ).¹

On appeal, defendants, citing Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864 (1999), argue that this Court should exercise its discretion to entertain the appeal to correct an error in the motion court's initial ruling. In Faricelli, the defendant appealed from the denial of a motion to dismiss an action for personal injury on the ground that the plaintiff could not establish constructive notice of a hazardous condition as a matter of law 94 N.Y.2d at 773–774, 698 N.Y.S.2d 588, 720 N.E.2d 864. As here, the defendant's appeal was dismissed for failure to prosecute ( id. at 774, 698 N.Y.S.2d 588, 720 N.E.2d 864 ). The plaintiff was awarded damages at trial, the defendant appealed from the judgment, and the Second Department reversed, holding that the verdict was not sufficiently supported by evidence of constructive notice (id. ). The Court of Appeals affirmed and acknowledged that the Second Department had discretion to entertain the second appeal even though the prior appeal on the same issue had been dismissed for failure to prosecute ( id. at 773–774, 698 N.Y.S.2d 588, 720 N.E.2d 864 ). The Court cited to Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 396 N.Y.S.2d 170, 364 N.E.2d 835 (1977), which states, "Every court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made."

Defendants' right to appellate review is entirely dependent on the basis of their application to the motion court for reconsideration of its previous order ( CPLR 2221[d], [e] ; compare Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 173 A.D.2d 203, 204, 569 N.Y.S.2d 426 [1st Dept. 1991], with Kasem v. Price–Rite Off. & Home Furniture, 21 A.D.3d 799, 801, 800 N.Y.S.2d 713 [1st Dept.2005] ). Before the 1999 amendment of CPLR 2221 (L. 1999, ch. 281 [effective July 20, 1999] ), a motion seeking to amend a prior order due to a change effected by statutory or case law was entertained as a motion to reargue (see e.g. Miller v. Schreyer, 257 A.D.2d 358, 683 N.Y.S.2d 51 [1st Dept.1999] ) as an exception to the general rule that reargument must be sought within the time specified for taking an appeal from the prior order (see Foley v. Roche, 86 A.D.2d 887, 447 N.Y.S.2d 528 [2d Dept.1982], lv. denied 56 N.Y.2d 507, 453 N.Y.S.2d 1025, 438 N.E.2d 1147 [1982] ). With the statutory amendment, the application has been designated a motion to renew ( CPLR 2221[e][2] ).

While defendants have denominated their motion as one seeking renewal, they identify no change in law warranting...