Out of Money, Jailed and Now...Losing a Legal Malpractice Case
How many fathers go to jail for non-payment of child support? We have no firm number, but guess it is less than 10 a year in New York State. Here is the story of one who was. Joel Amaker was in arrears on his child support, and hired defendant Howard D. Lee to represent him. The hearing ended in incarceration for Mr. Amaker, and a later pro-se legal malpractice case against Mr. Amaker. Amaker v Lee 2012 NY Slip Op 51868(U) Decided on September 28, 2012 Supreme Court, Kings County Rivera, J
In the decision note the prominence of Dombrowski v Bulson, 19 NY3d 347 [2012) on the issue of what damages are permissible in a legal malpractice case.
"The complaint alleges the following salient facts. In May of 2003, plaintiff hired the defendant to represent him in a child support proceeding pending in New York County Family Court under Docket No.: F-00898-02/05B, F-0898-02/05C called Jeanette Chirico v. Joel Amaker (hereinafter referred to as the "child support case"). Plaintiff retained the defendant to review the orders in the child support case against the orders in plaintiff's preceding divorce action in Supreme Court and then take over the child support case to reduce the child support order and arrears existing at that time. The plaintiff paid the defendant an initial deposit of $500.00 towards the child support case.
The complaint also alleges that the defendant missed several court appearances, failed to notify the court that he was not coming, and failed to prepare a defense for the plaintiff in the child support case. In particular the defendant failed to argue at a "willfulness hearing" that the plaintiff's failure to pay child support was not due to his desire not to pay but being unable to pay due to other circumstances. After a hearing, in which the plaintiff and the defendant were present, the court in the child support case made a decision holding the plaintiff to be in willful violation of the order of support and incarcerated him for a period of six months. The defendant failed to appeal the contempt order. Plaintiff contends that the defendant's conduct amounted to legal malpractice and resulted in his incarceration. "
"In the instant matter defendant contends that the plaintiff cannot demonstrate two essential factors. First, that plaintiff would have prevailed in the child support case. Second, that he would not have incurred any damages, but for the lawyer's negligence. There is no dispute that the support obligation and accumulated arrears, which precipitated the child support case, existed long before the plaintiff hired the defendant to represent him. There is also no dispute that the plaintiff's incarceration occurred after a hearing, in which he was offered an opportunity to present evidence and test the evidence submitted against him.
The defendant does not admit that he committed malpractice. Rather, he contends that accepting as true every allegation of fact stated in the complaint, the plaintiff does not plead any facts showing that he suffered a pecuniary loss. He further contends that plaintiff cannot demonstrate any pecuniary loss proximately caused by the defendant's alleged malpractice.
Defendant's sworn allegations of fact and documentary evidence makes a prima facie showing of the following facts. The plaintiff did not prevail in the child support case because he was found after an evidentiary hearing to have willfully failed to comply with a court ordered child support obligation. The plaintiff was incarcerated based on his willful disobedience of a child support order. The defendant did not agree to represent the plaintiff on an appeal of any order emanating from the child support case.
Assuming, for the sake of argument, that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession when he represented the plaintiff in the child support case, the plaintiff must demonstrate causation between the malpractice and ascertainable pecuniary loss. Pecuniary loss, does not include the emotional damage or pain and suffering caused by being incarcerated (see Dombrowski v Bulson, 19 NY3d 347 ; Gaskin v Harris, —- NYS2d ——, 2012 WL 3971280 [2nd Dept 2012]).
Defendant has made a prima facie showing that the plaintiff did not plead and cannot prove that he sustained any ascertainable pecuniary damage caused by the defendant's alleged negligence in representing him. The defendant has, therefore, made a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of his legal malpractice claim (Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716 [2nd Dept 2012]).
By doing so, the defendant has shifted the burden to the plaintiff to raise an issue of fact requiring a trial (Alaimo v Mongelli, 93 AD3d 742 [2nd Dept 2012]). The plaintiff has submitted an unsworn statement, incorrectly denominated as an affidavit, stating his position. The exhibits annexed to his opposition are therefore, not properly admitted and [*5]have no probative value. A review of the contents of plaintiff's statement, assuming that it had been properly sworn, reveals no triable issue. When viewed in the light most favorable to the plaintiff, it demonstrates no ascertainable pecuniary loss caused by the defendant's acts or omissions in representing him in the child support case. Plaintiff has failed to raise an issue of fact requiring a trial.
Defendant's motion for an order granting summary judgment in his favor on liability and dismissing the complaint pursuant to CPLR 3212 is granted.In light of the foregoing, the court need not and does not reach defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). "