What is “a change in the law?”

D’Alessandro v Carro, 123 A.D.3d 1, 992 N.Y.S.2d 520 [1st Dept., 2014]

The First Department here left undisturbed a ruling which was clearly against the settled law of the Department, on an issue which the Court of Appeals subsequently settled statewide by agreeing with the First Department. Two procedural issues are presented: the effect on subsequent appeals of the dismissal of an appeal for failure to prosecute; and the meaning of “a change in the law” as it applies to motions to reargue or renew. The substantive question was whether nonpecuniary damages are available in a legal malpractice case, where the malpractice led to unnecessary years in prison.
Defendants served as plaintiff’s appellate counsel in a criminal matter, and the conviction and sentence were upheld on appeal. After the plaintiff had served 14 ½ years in prison, he was released. In 2010, the conviction was overturned, and the indictment dismissed, due to the ineffective assistance of appellate counsel. Specifically, the defendants had failed to raise a speedy trial issue, which the court found to have been clearly meritorious, and which would have resulted in the dismissal of the indictment. (It was undoubtedly cold comfort to counsel that the representation was described as generally effective, except for this one omission.)
This legal malpractice action followed, in which the plaintiff seeks damages for 13 years of unnecessary incarceration. Plaintiff seeks damages of $26 million, including nonpecuniary losses of emotional and physical distress, damage to reputation and loss of consortium. It is the nonpecuniary losses which are the subject of this appeal. Defendants moved in Supreme Court, New York County, to dismiss the nonpecuniary damages, basing its motion on the First Department precedent of Wilson v City of New York, 294 A.D.2d 290, 743 N.Y.S.2d 30 [1st Dept., 2002]. That case, on notably similar facts, applied the bar against nonpecuniary damages in legal malpractice cases generally to malpractice in criminal cases. Supreme Court, however, decided to reject the law in Wilson in favor of a Fourth Department case, Dombrowski v Bulson, 79 A.D.3d 1587, 915 N.Y.S.2d 778 [4th Dept., 2010]. Dombrowski would have accepted the claim of loss of liberty as the basis for damages, and Supreme Court found that the First Department might accept the Dombrowski rule were it to revisit the issue. Of course, in so doing, Supreme Court was exceeding its authority under settled rules of stare decisis, which required it to apply the law as set forth by the Appellate Division in its Department unless a contrary rule is established by that Appellate Division or the Court of Appeals, and only allowed it to resort to the holdings of other Departments where the issue has not been addressed within its Department or by the Court of Appeals. (See, Mountain View Coach Lines v Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 [2nd Dept., 1984])
Defendants appealed the order, and while the appeal was pending, Dombrowski was reversed by the Court of Appeals, which saw no reason to depart from the settled rule against nonpecuniary damages in legal malpractice cases, even criminal ones.
It would seem that the defendants had a clear path to reversal in the Appellate Division, but they failed to timely perfect their appeal, which was dismissed for lack of prosecution. A motion in the Appellate Division to vacate that dismissal was denied. The issue now became the effect of the dismissal.
Defendants moved in Supreme Court to renew their motion to dismiss the claim for nonpecuniary damages, based on a change in the law, namely the reversal in Dombrowski. Supreme Court viewed the dismissal of the appeal as a disposition on the merits by the Appellate Division, ruling out reconsideration on a motion to renew. Supreme Court cited Bray v Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803 [1976], where the Court stated:

“We conclude that the rule to be followed is that a prior dismissal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal.”

The rule was adhered to by the Court of Appeals in Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866 [1999].
It is this order which is under appeal here. The Appellate Division, however, found no change in the law to justify the renewal motion. The law in the Department at the time of Supreme Court’s original order had been that nonpecuniary damages were not recoverable in a legal malpractice action, and that has not changed. The reversal in Dombrowski confirmed that law and did not change it. That Supreme Court had, in fact, applied Fourth Department precedent to this case, and that precedent has now been overturned, was not seen as a change of law sufficient to justify renewal. Therefore, even though the defendants describe their motion as one to renew, it is in fact a motion for reargument, and the denial of a reargument motion is not appealable.
The appeal was therefore dismissed.

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