Dombrowski v. Bulson

• Decision Date: 31 May 2012
• Docket Number: No. 83,83
• Parties: Thomas E. Dombrowski, Respondent, v. Raymond W. Bulson, Appellant.
• Court: New York Court of Appeals Court of Appeals

2012 NY Slip Op 04203

Thomas E. Dombrowski, Respondent,
v.
Raymond W. Bulson, Appellant.

No. 83

Court of Appeals of New York

Decided May 31, 2012

Vincent G. Saccomando, for appellant.

Marc C. Panepinto, for respondent.

Ganpat Ramcharran, amicus curiae.

LIPPMAN, Chief Judge:

The issue presented by this appeal is whether plaintiff, suing his former criminal defense attorney in legal malpractice, can recover nonpecuniary damages. We find that such damages are not available in an action for attorney malpractice.

Plaintiff Dombrowski was convicted in September 2000, after a jury trial, of

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attempted rape in the first degree, sexual abuse in the first degree and endangering the welfare of a child. Plaintiff moved pursuant to CPL 440.10 to vacate his conviction, arguing that he had received ineffective assistance of counsel. County Court denied the motion without a hearing, finding that defendant Bulson — plaintiff's trial attorney — had provided meaningful representation.

Dombrowski then sought a writ of habeas corpus in the United States District Court for the Western District of New York. Plaintiff urged several errors in particular — that defendant attorney failed to investigate or present evidence concerning an allegedly meritorious defense, failed to interview certain potential witnesses and failed to cross-examine the victim regarding discrepancies in her testimony. An evidentiary hearing was held, at which Bulson explained the reasoning behind his professional decisions regarding the conduct of the trial. The Magistrate found that errors by defense counsel made it difficult for the jury to make a reliable assessment of the "critical issue" of the victim's credibility (see Dombrowski v Giambruno, US Dist Ct, WD NY, 03 Civ 0620, Schroeder, Jr., USMJ, 2006). The petition was conditionally granted unless the People commenced further criminal proceedings against Dombrowski within 60 days. Dombrowski, however, was not reprosecuted and the indictment was dismissed.

Plaintiff then commenced this action, alleging that he had been damaged as a result of defendant's attorney malpractice. In relevant part, the complaint alleged that he had been incarcerated from January 17, 2001 until July 19, 2006. He then served a period of postrelease supervision, which was terminated only after his habeas corpus petition was granted.

Supreme Court granted defendant's motion for summary judgment and dismissed the complaint, finding that plaintiff's receipt of Social Security disability benefits while incarcerated precluded his claim of pecuniary damages and that damages for nonpecuniary loss were not available in an action for attorney malpractice. The Appellate Division modified and reinstated the portion of the complaint seeking...