ALBANY, N.Y., May 31 (Reuters) - Individuals who are wrongly
incarcerated and then sue their defense lawyers for malpractice
may not collect damages for the loss of liberty, New York's top
court has ruled.
In a unanimous decision overturning a lower court, the
Court of Appeals on Thursday ruled in the case of Thomas
Dombrowski, who served more than five years in prison for the
attempted rape of his daughter before his conviction was
overturned. Upon his release, Dombrowski sued his defense
lawyer, Raymond Bulson, for loss of liberty. But the appeals
court ruled that there was no precedent for suing for an
intangible such as the loss of liberty.
"We see no compelling reason to depart from the established
rule limiting recovery in legal malpractice actions to pecuniary
damages," Chief Judge Jonathan Lippman wrote for the court.
In 2000, Dombrowski, of rural Allegany County, was convicted
of attempted rape, sexual abuse and endangering the welfare of a
child. He moved to vacate the conviction, arguing that Bulson
had not provided effective counsel, but the trial court
dismissed the motion.
Dombrowski was incarcerated between 2001 and 2006, and upon
his release he began serving a period of probation.
In 2009, Dombrowski was granted a writ of habeas corpus in
District Court for the Western District of New York. He argued,
and the court agreed, that Bulson had failed to sufficiently
cross-examine Dombrowski's daughter. Prosecutors declined to
retry Dombrowski, and his indictment was dismissed.
Later that year Dombrowski sued Bulson in State Supreme
Court for unspecified damages for his loss of liberty. State
Supreme Court Justice John Michalek granted Bulson's motion for
summary judgment and dismissed the malpractice case, finding
that such damages were not available in legal malpractice cases.
Last year the Appellate Division, Fourth Department,
modified, holding that such damages were permissible in criminal
cases in which the defendant's losses were a direct result of an
"In our view, a cause of action for criminal legal
malpractice is analogous to causes of action for false arrest
and malicious prosecution," the Fourth Department wrote in an
unsigned memorandum, "both of which allow recovery for the
plaintiff's loss of liberty resulting from the plaintiff's
The Court of Appeals on Thursday disagreed. False arrest and
malicious prosecution, Lippman wrote, are deliberate acts, while
ineffective assistance of counsel is not.
"It makes sense that the scope of recovery for deliberate
torts is broader than for torts based on the failure to exercise
skill or care," he wrote.
Lippman, who as New York's chief judge has made access to
legal representation for the poor a top priority, also said
allowing for nonpecuniary damages could have "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," he wrote.
Dombrowski's attorney, Marc Panepinto, and Bulson's attorney,
Vincent Saccomando, did not return requests for comment.
The case is Thomas Dombrowski v. Raymond Bulson, New York
State Court of Appeals No. 83.
For Dombrowski: Marc Panepinto of Cantor, Lukasik, Dolce &
For Bulson: Vincent Saccomando of Damon Morey
(Reporting by Dan Wiessner)
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