It’s well understood that non-pecuniary damages are not available in legal malpractice.  No damages for emotional distress, no damages for physical injury (think: heart attack) from legal malpractice and no damages for wrongful incarceration which are non-pecuniary.  Nevertheless, in D’Alessandro v Carro  2014 NY Slip Op 06246  Decided on September 18, 2014  Appellate Division, First Department , Presiding Justice Tom, threads his way to a decision in which all of these prohibited damages are available to plaintiff.  It all starts with a dismissed appeal.

"In June 2010, this Court granted plaintiff’s application for a writ of error coram nobis, reversing the judgment of conviction and dismissing the indictment (People v D’Alessandro, 2010 NY Slip Op 75591[U] [1st Dept 2010]). We held that appellate counsel’s failure to raise a clear-cut speedy trial issue was dispositive of the question of effective assistance of counsel (id.). In particular, we held that the period of 196 days between the filing of plaintiff’s omnibus motion seeking dismissal of the indictment and the time the People produced the grand jury minutes in response to the motion alone would have exceeded the 184 days during which the People were required to be ready for trial (CPL 30.30[1][a]). We noted that the issue of whether the time was chargeable to the People was settled law (see People v McKenna, 76 NY2d 59 [1990]) and had counsel raised the issue, his client would have prevailed (D’Alessandro, 2010 NY Slip Op 75591[U]).

Plaintiff then commenced the instant legal malpractice action in January 2011. The complaint alleges that defendants’ failure to raise the speedy trial issue on appeal caused plaintiff to needlessly remain incarcerated for over 13 years. He seeks damages of $26 million, including loss of income, as well as nonpecuniary damages for emotional and physical distress, damage to reputation and loss of consortium.

In response, defendants moved to dismiss the complaint for failure to state a cause of action based on the documentary evidence (CPLR 3211[a][1], [7]). In the alternative, the motion sought dismissal of the claims for nonpecuniary damages on the ground that such damages are unavailable in legal malpractice cases. In their memorandum of law in support of the motion, defendants relied upon this Court’s ruling in Wilson v City of New York (294 AD2d 290 [1st Dept 2002]), which likewise involved a claim arising out of the plaintiff’s conviction on criminal charges and resulting incarceration. As defendants noted, Wilson holds that the bar against recovery of nonpecuniary damages in a legal malpractice action is a matter of policy not limited to the civil context (id. at 292-293).

However, the Supreme Court (Emily Jane Goodman, J.), on February 29, 2012, denied [*3]the motion in its entirety and allowed the claims for nonpecuniary damages to remain (34 Misc 2d 1242[A], 2012 NY Slip Op 50508[U], *6 [Sup Ct, NY, County 2012]). In doing so, the motion court rejected this Court’s rule in Wilson that nonpecuniary damages may not be sought in malpractice cases, even in the criminal context (id. at *5-6). The court noted that the "ten year old Wilson theory of damages was not adopted by the Fourth Department" in the more recent decision of Dombrowski v Bulson (79 AD3d 1587 [4th Dept 2010], revd 19 NY3d 347 [2012]), which held that non-pecuniary damages may be recovered in criminal malpractice cases. Noting that D’Alessandro would have been spared 10 years of incarceration if the direct appeal had challenged the speedy trial ruling, the court reasoned, "[I]f the . . . First Department had the occasion to revisit the instant case, or a similar one where malpractice has been established and the issue of damages central, perhaps it would be viewed differently" (2012 NY Slip Op 50508[U], *5). Dombrowski was subsequently overturned on May 31, 2012 (19 NY3d 347 [2012]).

While defendants have denominated their motion as one seeking renewal, they identify no change in law warranting reexamination of their arguments. It is axiomatic that Supreme Court is bound to apply the law as promulgated by the Appellate Division within its particular Judicial Department (McKinney’s Cons Laws of NY, Book 1, Statutes § 72[b]), and where the issue has not been addressed within the Department, Supreme Court is bound by the doctrine of stare decisis to apply precedent established in another Department, either until a contrary rule is established by the Appellate Division in its own Department or by the Court of Appeals (Mountain View Coach Lines v Storms, 12 AD2d 663, 664 [2d Dept 1984]; see also People v Turner, 5 NY3d 476, 481-482 [2005]; United States Gypsum Co. v Riley-Stoker Corp., 11 Misc 2d 572, 575 [Sup Ct, Genesee County 1958] ["The doctrine of stare decisis does not compel a judge at Special Term to follow a decision of a Special Term in another judicial district; nevertheless, he shall follow a decision made by the Appellate Division of another department, unless his own Appellate Division or the Court of Appeals holds otherwise"] [emphasis omitted]), affd 7 AD2d 894 [4th Dept 1959], revd on other grounds 6 NY2d 188 [1959]. Thus, a particular Appellate Division will require the lower courts within its Department to follow its rulings, despite contrary authority from another Department, until the Court of Appeals makes a dispositive ruling on the issue (see e.g. Ross v Curtis-Palmer Hydro-Elec. Co., 180 AD2d 385, 390 [3d Dept 1992], mod 81 NY2d 494 [1993]).

In this case, the applicable law was established by our ruling in Wilson v City of New [*5]York (294 AD2d at 292-293), which holds that nonpecuniary damages are unrecoverable in a legal malpractice action whether the malpractice is civil or criminal in nature. The law in this Department was unaltered by the ensuing Court of Appeals’ decision in Dombrowski. Indeed, in following Wilson and rejecting the Fourth Department’s contrary position, the Court of Appeals stated, "We see no compelling reason to depart from the established rule limiting recovery in legal malpractice actions to pecuniary damages" (19 NY3d at 352). While Supreme Court did not decide the procedural issue, it is clear that defendants have advanced no grounds for renewal of their motion to dismiss. Indeed, an intervening ruling that merely clarifies existing law does not afford a basis for renewal attributed to a change in the law (Philips Intl. Invs., LLC v Pektor, 117 AD3d 1 [1st Dept 2014]). While this Court has the discretion to reconsider an issue on an appeal previously dismissed for failure to prosecute, "even if it could have dismissed the appeal under Bray" (Faricelli at 794), the instant appeal must be dismissed since defendants’ motion before the motion court was one to reargue, the denial of which is not appealable (Pier 59 Studios, L.P. v Chelsea Piers, L.P., 40 AD3d 363, 366 [1st Dept 2007]). We have considered defendants’ remaining contentions and find them unavailing."