D'Alessandro v Carro

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D'Alessandro v Carro 2012 NY Slip Op 30529(U) February 29, 2012 Supreme Court, New York County Docket Number: 100135/2011 Judge: Emily Jane Goodman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY EMILY JANE G0C)BMAN .- - - - - -- PART c Index Number : 1001351201I D'ALESSANDRO, GIUSEPPE -J 2 INDEX NO. vs MOTION DATE CARRO, JOHN MOTION sEa. NO. Sequence Number : 001 t DISM ACTION/ INCONVENIENT FORUM I 1 O ~ I F U I rnUUUlUWl U W I V Answering Affidavits % " VI.".. !/for I I ....... " " I " - I - Exhlblta Replying Affldavltn Upon the foregolng papem, It Is ordered that thlo motlon Is &k3 % .: ; A - NEW YORK COUNTY CLEHK'S OFFICE J.S.C. Dated: I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ,,.........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ oDENIED GRANTED SETTLE ORDER DO NOT POST c @GRANTED IN PART OTHER 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT REFERENCE [* 2] Plaintiff, DFCISZON & ORDER -againstJOHN CARRO, JOHN S . CARRO, BARTLY MITCHELL, DASIL ELIUS VELEZ, -0 & MITCHELL, LLP. , and CARRO, VELEZ, CARRO & MITCHELL, LLP., MAR 06 2012 hlEW YORK COUN-IY CL ¬RKS OFFICE BMILY JANE GOODMAN, J . S . C . : Plaintiff Giuseppe D Alessandro (Plaintiff) sues Mitchell, LLP. (collectively Defendants) for legal malpractice stemming from representation in a 1993 criminal appeal. Plaintiff seeks damages of $26 million for being subjected to wrongful incarceration, loss of reputation, income and Consortium, and for emotional and physical distress. Defendants move to dismiss on the grounds of documentary evidence (CPLR 3211Lal C11) , and that the complaint fails to state a cause of action (CPLR 3211[a] [ 7 ] ) . In the alternative, they seek to dismiss the non-pecuniary damages claims. In November 1989, Plaintiff was indicted for felony kidnapping in the second degree and several related charges, including assault. It was alleged that Plaintiff, a restaurant manager, came to believe that one of his employees stole $3,000 [* 3] from the restaurant. While at work, plaintiff accosted the employee with a firearm and forced him into the restaurant basement, where he held his employee captive for several hours. In 1990, Plaintiff moved to dismiss the indictment on the grounds that CPL 30.30, the speedy trial statute, had been violated. The trial court denied the motion. T h e jury found Plaintiff guilty, and Plaintiff began serving a 15 year sentence. In 1995, Plaintiff hired Defendant to handle the direct appeal of his conviction. The Appellate Division affirmed the v D Alessandro, 2 3 0 AD2d 656 [ l a t Dept 19961). The issue of the speedy trial violation was not addressed on appeal; that is the central issue of this matter. Plaintiff served 14 and a half years of his term and was released on parole. He then moved for a writ of error coram nobis on the ground that the trial court improperly determined that the speedy trial provision was not violated, and noted his attorney s failure to appeal the issue in the direct appeal. The appellate court granted the writ ( P e o p l e v. D Alessandro, 2010 WL 2 6 5 2 4 4 7 [Ist Dept 2 0 1 0 1 ) . It found that The statute creates a time frame wherein the People must be ready for trial, and if the People are not effectively ready for trial, the defendant can be released from custody or the case can be dismissed. Generally, a writ of error coram nobis is the remedy for setting aside an erroneous judgment that resulted from an error of fact in the proceeding. -2- [* 4] the speedy trial argument was "clearly meritorious" and determined that, notwithstanding Defendants' otherwise effective aasistance, its failure to raise that "clear cut and dispositive" argument warranted the grant of the writ. The court held: Because it is "clear-cut" that defendant would have prevailed on the speedy trial issue had his appellate counsel raised it, he is entitled to a writ of error coram nobis. *** [Tlhe application for a writ of error coram nobis is granted, the decision and order of this Court entered on August 22, 1996 . . . is hereby recalled and vacated, and the judgment of the Supreme Court, New York County, (Jerome Hornblass , J) , rendered April 20, 1993, convicting defendant, after a jury trial, of kidnapping in the first degree, assault in the second degree, coercion in the first degree, attempted robbery in the first degree, and attempted grand larceny in the second degree is reversed, on the law, and the indictment dismissed. (Id.). This action followed, wherein Plaintiff seeks $26 million in damages arguing that Defendants failure to raise the speedy trial argument on appeal constitutes legal malpractice. Sufficiencv of Pleadinqa In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise t h e ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages (Pellegrino v. File, 291 AD2d 60, 63 [Iae Dept 20021 1 . i -3- [* 5] Defendants f i r s t argue that plaintiff failed to allege the necessary elements of a legal malpractice cause of action, specifically, causation. In order to establish proximate cause in a malpractice case, the plaintiff must show that but for the attorney s negligence, w h a t would have been a favorable outcome was an unfavorable outcome ( Z a r i n v Reid 387 [lst Dept 1 9 9 2 1 ) . & Priest, 184 AD2d 385, The complaint alleges that but for the Defendants failure to raise the speedy trial violation, he would not have been incarcerated for 15 years. In support, he cites to the decision quoted above. Accordingly, the complaint alleges causation. Next, Defendants argue that plaintiff does not, and cannot, make a colorable claim of innocence. [TI0 state a cause of action f o r legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense . . . for so long as the determination of his guilt of t h a t offense remains undisturbed, no cause of action will lie . . . This requirement is central to the determination of causation in a cause of action for legal malpractice ariaing from a criminal proceeding . . . *** We require that the criminal client bear the unique burden to plead and prove that the client s conviction was due to the attorney s actions alone and not due to some consequence of his guilt (Britt v Legal A i d SOC., I n c . , 95 NY2d 443, 446 [200O][citations omitted]). Where an individual cannot assert his innocence, public policy preventq maintenance of a malpractice action against his attorney (Carmel v Lunney, -4- 7 0 NY2d 169, 173 L 1 9 8 7 1 . [* 6] In other words, an otherwise guilty individual should not be able to profit from his criminal acta due to the procedural mistakes of his attorney. Defendants argue that plaintiff cannot prove that the conviction was due to his attorney s actions alone because the plaintiff is factually guilty. In support, Defendants cite to several items of documentary evidence to prove guilt, including the 1993 judgment of conviction, which was reversed, and the 1996 appeal decision, which was recalled and vacated. Defendanta also cite to the 1993 jury verdict, which was not explicitly vacated; however, the indictment from which that verdict followed was dismissed (People v D Alessandro, 2010 WL 2652447 [lst Dept 20101). Finally, Defendants provide an unsigned affidavit of plaintiff, dated September of 1996, wherein he stated [ i l f I was told or knew that kidnapping in the first degree carried a mandatory fifteen year sentence . . . I would have sought a plea disposition in this case, regardless of my guilt or innocence (Hyland Aff., Ex. E). Defendants claim this unsigned, unsworn affidavit is an acknowledgment of guilt. It is not. While to a casual reader, rather than a legal scholar, it may be sufficient to rely -on the conviction as proof of guilt, b u t for the denial of the 30.30 motion, it would not have gone to a jury. And, if not for the failure to raise the 30.30 decision on appeal, the duration of plaintiff s incarceration would have been dramatically reduced. 0- -5- [* 7] be appropriately granted only where the documentary evidence utterly refutes plaintiff s factual allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual. Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]). Defendants rely solely on court documents that are not longer valid or binding, and an unsigned affidavit of dubious value. Accordingly, f o r the purposes of this motion, Defendants have not conclusively established their burden. Damaqes Defendants argue that any claims f o r non-pecuniary damages must be dismissed because New York limits damages from legal malpractice to pecuniary damages. It cites to Wilson v C i t y of N e w York (294 AD2d 2 9 0 [lst Dept 2 0 0 2 1 ) wherein the court cited the general rule that [a] c a m e of action f o r [civil] legal malpractice does not afford recovery for any item of damages other than pecuniary loss i.e., monetary, economic loss (id. at 292-3, citing Wolkstein v Morgenstern, 2 7 5 AD2d 635 [lst Dept Z O O O I ) , and applied that determination to legal malpractice in a criminal case. Defendants counter that the Fourth Department directly opposes Wilson and allows recovery for nonpecuniary losses, including loss of liberty ( s e e Donbrowski v Bulson, 79 AD3d 1587 [4th Dept 20101). The plaintiff in Wilson sued hia attorney f o r legal -6- [* 8] malpractice in a criminal prosecution. Included in his claim against his former defense attorney was a claim for "loss of liberty." Wilson contended that the bar against non-pecuniary damages in civil malpractice cases should not be extended to criminal cases, "becauae the primary harm caused by attorney malpractice in criminal cases, typically an unwarranted extended loss of liberty, is necessarily nonpecuniary in nature" (Wilson, 2 9 4 ADZd at 292). Notwithstanding this argument, the court determined that Wilson had not established but-for causation, and dismissed the malpractice claim. While the court found that malpractice had not been established, a discussion of and rejection of damages for loss of liberty nevertheless ensued. Most respectfully, since that discussion did not apply to the facts of Wilson, the case that was under consideration, its application to the case herein is troublesome. The ten year old Wilson theory of damages was not adopted by the Fourth Department in the recent case of Dombrowski, s u p r a . In that matter, plaintiff was convicted of two felonies. He moved to vacate the conviction for ineffective assistance of counsel. The motion was denied. Plaintiff then commenced a habeas corpus proceeding contending ineffective assistance of counsel. The petition was granted and t h e indictment dismissed; however, plaintiff had served five years in -7- [* 9] jail. Plaintiff then sued his defense attorney for legal malpractice for, i n t e r alia, loss of liberty. The Supreme Court granted summary judgment dismissing the complaint on the ground that he had no right to recover non-pecuniary damages. The Fourth Department reversed the decision. It noted that the trend amongat many other states is to allow recovery for loss of liberty in criminal legal malpractice cases, and h e l d that [A] plaintiff who establishes that he or she was wrongfully convicted due to the malpractice of his or her attorney in a criminal case may recover compensatory damages for the actual injury sustained, i . e . , loss of liberty (Dombrowski, 79 AD3d, at 1590). Placed in the current context, if the Appellate Division, First Department had the occasion to revisit the instant case, or a similar one where malpractice has been established and the issue of damages is central, perhaps it would be viewed differently. Here, all underlying charges having been dismissed by the First Dept on the coram nobis proceeding. Loss of liberty is the most serious punitive measure in this state and the plaintiff herein served 14 1/2 years in prison, approximately ten more years than he would have served if the direct appeal had addressed the 3 0 . 3 0 error of the trial judge (and, though not part of this lawsuit, more than the period of incarceration had t h e original 30.30 motion been -8- [* 10] granted). Some would argue that imprisonment is a fate worse than loss of life. Yet a physician can be assessed non-pecuniary damages in malpractice causing the loss of life. The inability to seek damages for the taking of freedom, even after due process--but in error--strikes this court as paradoxical and an unintended diminution of the effects of loss of liberty. Accordingly, it is hereby is further ORDERED that the defendants are directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further ORDERED that counsel are directed to appear for a preliminary conference in Part 17, Room 581, 111 Centre Street, on April 30, 2012 at 1 O : O O AM. Dated: February \qj FILED 2012 MAR 06 2012 Enter: NEW YORK COUNTY CLERK'S OFFICE -9-

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