Borges v Placeres 2014 NY Slip Op 24053 Decided on March 5, 2014 Appellate Term, First Department is rather an amazing story. On one level it is the vindication of a man harmed, on another level it is the story of mistake piled on top of mistake, and in the end, our guess is that there will be a very minimal recovery. Damages are $1,249,121.37 and it seems to be for mental and emotional disturbance as well as for non-economic damages. Neither of these types of damages are permissible in Legal Malpractice cases under Dombrowski v. Bulson, 19 NY3d 347 (2012)
We wonder whether there was any insurance. based upon the identity of the defense attorney.
Mistakes in the representation: This legal malpractice action arises out of defendant-attorney’s representation of plaintiff, a Venezuelan native, in connection with an immigration matter. The trial evidence showed, and it is not seriously disputed, that despite a specific directive by the United States Immigration Court that plaintiff personally appear in court on a specified date, defendant advised plaintiff not to comply; that plaintiff heeded defendant’s advice, with neither one appearing as directed on the court date; and that the intentional nonappearance, representing defendant’s purported "strategy" to "buy time," resulted in the Immigration Court’s issuance of an in abstentia deportation order against plaintiff and his subsequent 14-month detention in "lockdown" custody. The jury unanimously returned a plaintiff’s verdict finding that defendant committed legal malpractice, a determination not now directly challenged by defendant on sufficiency or weight of the evidence grounds.
Mistakes in the defense of the legal malpractice case:With respect to damages, it need be emphasized that our review of the jury’s award may not be based on the recent decisional law relied upon by defendant – precedent holding that an award of nonpecuniary damages is generally unavailable to a plaintiff in an action for attorney malpractice (see Dombrowski v Bulson, 19 NY3d 347 ). Notably, defendant did not raise an objection to the jury charge as given, instructing the jury that they could award plaintiff damages for pain and suffering, or to the corresponding question on the verdict sheet, and, indeed, defendant raised no objection at trial to the introduction of evidence regarding the mental and emotional disturbance caused by plaintiff’s detention. Thus, the court’s unexcepted to jury charge became the law of the case, or more accurately, "consent . . . to the law to be applied" (Martin v City of Cohoes, 37 NY2d 162, 165 ; see Knobloch v Royal Globe Ins. Co., 38 NY2d 471, 477 ). Moreover, defendant does not otherwise argue that the award of damages deviated materially from what would be reasonable compensation (see Harvey v Mazal American Partners, 79 NY2d 218, 225 ).
Turning to the propriety of the denial of defendant’s eve-of-trial motion to amend his answer, we find no abuse of the court’s discretion. Defendant’s motion for leave to include the Statute of Limitations as a defense was made approximately eight years after he served his initial answer, and after plaintiff engaged in discovery, motion practice and placed the case on the trial calendar, presumably spending considerable time and expense preparing for trial. Such prejudice, coupled with defendant’s failure to offer an excuse for the substantial delay, warranted a denial of the motion (see Cameron v 1199 Housing Corp., 208 AD2d 454 ; see also Cseh v. New York City Tr. Auth., 240 AD2d 270 ). Defendant’s belated motion for summary judgment on the Statute of Limitations defense was also properly denied.