All the Wrong Kind of Damages in Legal Malpractice
For policy reasons New York Courts limit the types of damages that might be awarded in legal malpractice. Basically, as the NY Court of Appeals recently reiterated, only pecuniary loss may be the subject of legal malpractice litigation. This specifically and totally leaves out any type of emotional damages. Nevertheless people suffer these injuries when their attorneys are neglectful.
White v Chelli & Bush 2013 NY Slip Op 30491(U) March 11, 2013 Supreme Court, Richmond County Docket Number: 103745/11 Judge: Joseph J. Maltese is one such example.
"The plaintiff has been deaf since birth. After an automobile accident on or about April 16, 2007, the plaintiff retained Chelli & Bush to represent her in a personal injury litigation. According to the plaintiff’s allegations, it was communicated to the attorneys that the plaintiff would require a sign language interpreter during all phases of the litigation. On or about November 28, 2007 the law firm of Chelli & Bush commenced a personal injury action on behalf of the plaintiff captioned White v. Varsertriger, Index No. 104489/2007. The plaintiff maintains [* 1] that the defendants failed to provide sign language interpreters as requested, except for the examination before trial and the preceding preparation."
"The plaintiff’s basis for her legal malpractice claim occurs at paragraphs 63 and 64 in her
amended complaint that allege that the defendants inability to communicate with her represents a
failure to comply with an attorney’s basic ethical obligation. At paragraphs 66 and 67 the plaintiff alleges the following damages:
66. As a consequence of Defendants’ actions and inactions, White
experienced feelings of frustration, helplessness and inadequacy
throughout the pendency of the litigation and during settlement
conferences. Thereafter, she has experienced sleep and appetite
disturbances, episodes of crying, fearfulness or trepidation, and
feelings of worthlessness, anxiety and depression.
67. As a consequence of Defendants’ actions and inactions,
Plaintiff has been prejudiced and suffered severe emotional distress
and is entitled to compensatory damages.
The Appellate Division, Second Department has made it clear that claims of damages
stemming from the intentional infliction of emotional distress are not recoverable in legal
“Damages in a legal malpractice case are designed ‘to make the injured client whole’ . . . A plaintiff’s damages may include ‘litigation expenses incurred in attempt to avoid, minimize, or
reduce the damage caused by the attorney’s wrongful conduct’. . .”7 While the Court of Appeals
has held that plaintiff may be awarded litigation expenses incurred to correct an attorney’s error,
it specifically rejected the notion that a plaintiff could be reimbursed for the expenses incurred
because of an attorney’s negligence.8 Consequently, the plaintiff’s claims for damages based on
the costs and attorney’s fees of this law suit is without merit."