Dawson v Schoenberg  2015 NY Slip Op 04603  Decided on June 3, 2015  Appellate Division, Second Department is the sister case to Dawson which we discussed yesterday.  As is well settled, in a legal malpractice case against a former defense attorney, plaintiff must demonstrate that the conviction “was due to the attorney’s actions alone and not due to some consequence of his [or her] guilt” (Britt v Legal Aid Socy., 95 NY2d 443, 447; see Dombrowski v Bulson, 19 NY3d at 350-351; Cummings v Donovan, 36 AD3d 648, 648).”  We don’t see why this was not still a question of fact on a motion for summary judgment, but the AD2 definitely does not agree with us.

“Here, the defendant met his initial burden of demonstrating, prima facie, that the plaintiff is unable to prove the element of causation. Specifically, the defendant submitted admissible evidence demonstrating that the plaintiff’s convictions after her first trial were not due solely to the defendant’s conduct, but were also the result of other factors, including those arising from “some consequence of [her] guilt” (Britt v Legal Aid Socy., 95 NY2d at 447). The evidence submitted by the defendant included graphic testimony of the plaintiff’s own children, admitted into evidence at the first trial, which detailed numerous acts of sexual abuse committed by the plaintiff against them. In opposition, the plaintiff failed to raise a triable issue of fact as to whether her convictions after the first trial were due solely to the defendant’s conduct (see id.).

Additionally, the plaintiff’s claims for nonpecuniary damages, including physical and psychological injuries allegedly sustained while she was incarcerated following the first trial, are not recoverable in a legal malpractice action (see Dombrowski v Bulson, 19 NY3d 347;D’Alessandro v Carro, 123 AD3d 1; Young v Quatela, 105 AD3d 735; Brownell v LeClaire, 96 AD3d 1336, 1338).”