In its recent decision in Dombrowski v. Bulson, 19 N.Y.3d 347 (2012), the New York Court of Appeals recently reiterated the long-established New York court-made rule barring the recovery of damages for emotional distress injuries and other “non-pecuniary” (i.e., non-monetary) losses in legal malpractice cases.
Bucking the position of the majority of states which treat legal malpractice damage claims no differently than other types of negligence claims,[1] the New York Court of Appeals in Dombrowski, in reversing the holding of the Fourth Department, held that non-pecuniary damages are not recoverable in a legal malpractice action arising from a criminal attorney’s “ineffective” defense of the plaintiff. In Dombrowski, the plaintiff’s disallowed non-pecuniary damages arose from his wrongful conviction and 5-1/2 years of incarceration resulting from his defense lawyer’s alleged legal malpractice.
In just about all species of negligence cases, including medical malpractice, the New York courts allow for the recovery of non-pecuniary losses, including damages for emotional distress, in the same manner in which damages can be recovered for physical injuries, lost income and other damages. In contrast to legal malpractice claims, the Court of Appeals decision in Ornstein v. New York City Health and Hospitals Corp., 10 N.Y.3d 1 (2008) illustrates the Court’s allowance and lengths for which emotional distress damages can be recovered in medical malpractice cases. There, the Court of Appeals extended the time period and allowed a nurse who believed she was exposed to the HIV virus to maintain her claim against the hospital for an alleged negligent infliction of emotional distress despite the tenuous connection between the risk of infection and the plaintiff’s mental suffering.
New York’s extraordinary protection of lawyers from emotional distress damages is based solely on court-made policy as made clear by the Court of Appeals’ reasoning in Dombrowski:
We see no compelling reason to depart from the established rule limiting recovery 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.
19 N.Y.3d at 352. See also, Landon v Kroll Lab. Specialists, Inc., 22 N.Y.3d 1, 8 (2013).
While the reasoning in Dombrowski is seemingly limited to criminal defense attorneys, subsequent decisions in the Appellate Divisions, citing Dombrowski as the new, controlling precedent, draw no distinction with other types of law practices and continue to bar non-pecuniary damages in all manner of legal malpractice cases. See, e.g., Young v. Quatela, 105 A.D.3d 735, 736 (2nd Dept. 2013); Kodsi v. Gee, 100 A.D.3d 437, 439 (1st Dept. 2012).
Other than the New York courts’ desire to grant special protection to lawyers, no reason or explanation can be discerned as to why victims of legal malpractice should be treated any differently than victims of medical malpractice and other forms of negligence. In furtherance of Sanford F. Young’s efforts to challenge this unfair policy, such as in his Kodsi case, Mr. Young looks forward to being retained in a case that is ripe for an appeal to the Court of Appeals.
[1] See, e.g., Miranda v. Said, 2012 WL 2410945 (Ct.App. Iowa.); Morris v. Margulis, 718 N.E.2d 709 (App.Ct. Ill.1999); Worsham v. Nix, 145 P.3d 1055 (Sup.Ct. Ok.2006); Doe v. Roe, 681 N.E.2d 640 (Ill. App. 1997);McAlister v. Slosberg, 658 A.2d 658 (Sup.Jud.Ct. Me.1995); Rhodes v. Batilla, 848 S.W.2d 833 (Ct. of Appeals. Tex.1993); Burton v. Merrill, 612 A.2d 862 (Sup.Jud.Ct. Me. 1992); Kohn v. Schiappa, 656 A.2d 1322, 1325 (Superior Ct. N.J.1995); Beis v. Bowers, 649 So.2d 1094 (La. App. 1995); Micras v. Debora, 516 N.W.2d 154 (Mich. App. 1994); Henderson v. Domingue, 626 So.2d 555 (La. App. 1993); Gore v. Rains & Block, 473 N.W.2d 813 (Mich. App. 1991). See also, Singleton v. Stegall, 580 So.2d 1242 (Sup.Ct. Miss.1991); Same, Ovando v. County of Los Angeles, 2008 WL 162810 (Cal. App. 2nd Dist.2008); Holliday v. Jones, 264 Cal.Rptr. 448 (Cal.App. 1989); Lawson v. Nugent, 702 F.Supp. 91 (D. N.J. 1988); Bowman v. Doherty, 686 P.2d 112 (Sup.Ct. Kan.1984); Wagenmann v. Adams, 829 F.2d 196, 221-22 (1st Cir.1987).