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New York Court of Appeals Holds That Nonpecuniary Damages Are Not Recoverable in Legal Malpractice Actions

Dombrowski v. Bulson, 2012 NY Slip Op 4203 – NY: Court of Appeals 2012 – Google Scholar.


This case arose out of a dispute between a client suing his former criminal defense attorney.  The Court noted that New York has rejected nonpecuniary damages in malpractice in civil cases.  It came to the same conclusion for legal malpractice in criminal cases:

New York courts that have been confronted with the issue have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to nonpecuniary damages arising out of representation in civil proceedings (see e.g. Dirito v Stanley, 203 AD2d 903, 904 [4th Dept 1994] [affirming dismissal of damages claim for emotional pain and suffering]; Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000] [“A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury”])….

We see no compelling reason to depart from the established rule limiting recovery inlegal 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.”

The court appears to be concerned about the long-term damage to the criminal justice system with such a rule.

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