In Dombrowski v Bulson   2012 NY Slip Op 04203 [19 NY3d 347]   May 31, 2012   Lippman, Ch. J.
Court of Appeals decided that incarceration – loss of liberty was not an economic damage, and was "non-pecuniary."  It wrote: "We see no compelling reason to depart from the established rule limiting recovery [*4]in legal malpractice actions to pecuniary damages. Allowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions. We therefore hold that plaintiff does not have a viable claim for damages and the complaint should be dismissed in its entirety. "

One might think that the Court of Appeals’ clear statement would hold true in all cases, but there are many slips "between the cup and the lip."   In D’Alessandro v Carro  2013 NY Slip Op 51275(U)  Decided on July 25, 2013  Supreme Court, New York County Hagler, J., a motion to dismiss on this basis goes awry.
 

Plaintiff sued for legal malpractice claiming that his appellate counsel negligently failed to raise a speedy trial issue, resulting in many years of incarceration.  When defendants moved to dismiss, Supreme Court denied the motion citing the AD decision in Dombrowsky, soon to be reversed by the Court of Appeals.  A notice of appeal was filed, and after the Court of Appeals decision, the appeal was not pursued.

Now, on a new motion to Supreme Court, defendants find that they cannot get the case dismissed. "While defendants are correct that every trial court has the inherent discretion to change its own decisions, that is only true prior to an appellate determination on the merits of the case. In other words, this Court no longer can grant renewal of the Prior Order due to the subsequent order of the Appellate Division which operated as a dismissal of the appeal on the merits. However, the Appellate Division is not so constrained to review its own dismissal of the Prior Order for lack of prosecution.

Moreover, defendants have not provided any reason for their failure to forestall the dismissal of the appeal and the Court’s exercise of its discretion. Defendants had many options to avoid this result such as: (1) timely perfecting the appeal, (2) seeking an extension to perfect the appeal, or (3) simply withdrawing the appeal. Instead, the Appellate Division was required to issue an order dismissing the abandoned appeal for want of prosecution.

Under these circumstances, this Court does not have the discretion to grant defendants’ motion for renewal after the Appellate Division has dismissed the appeal of the Prior Order for lack of prosecution, which operated as a dismissal on the merits. "