Dawson v. Schoenberg

• Decision Date: 03 June 2015
• Docket Number: 2013-11367
• Citation: 10 N.Y.S.3d 577,2015 N.Y. Slip Op. 04603,129 A.D.3d 656
• Parties: Joetta DAWSON, formerly known as Joetta Dean, respondent, v. Ronald SCHOENBERG, appellant.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 656
10 N.Y.S.3d 577
2015 N.Y. Slip Op. 04603

Joetta DAWSON, formerly known as Joetta Dean, respondent
v.
Ronald SCHOENBERG, appellant.

2013-11367

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

June 3, 2015.

10 N.Y.S.3d 578

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

Davidoff Hutcher & Citron LLP, Garden City, N.Y. (Richard G. Gertler of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.

Opinion

129 A.D.3d 657

In an action to recover damages for legal malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Janowitz, J.), entered October 11, 2013, as denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

In a prior criminal proceeding, the plaintiff was convicted of three counts of course of sexual conduct against a child and one count of sexual abuse in the second degree based upon allegations that she sexually abused two of her children over a period of years. On appeal, this Court reversed the judgment of conviction on the grounds that the plaintiff was deprived of the effective assistance of counsel and that, when viewed as whole, the manner in which the trial was conducted deprived her of her right to a fair trial. Accordingly, this Court remitted the matter to the County Court, Nassau County, for a new trial before a different Judge (see People v. Dean, 50 A.D.3d 1052, 856 N.Y.S.2d 649 ). After the new trial, the plaintiff was acquitted of the charges against her. Thereafter, the plaintiff commenced this legal malpractice action against the defendant, the attorney who represented her at the first trial, seeking both pecuniary and nonpecuniary damages. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court denied his motion, concluding that he failed to establish his prima facie entitlement to judgment as a matter of law.

To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; Biberaj v. Acocella, 120 A.D.3d 1285, 1286, 993 N.Y.S.2d 64 ). Even where a plaintiff establishes that his or her attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession, the plaintiff must still demonstrate causation (see

10 N.Y.S.3d 579 ...