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Appellate practice and procedure: Lessons from D'Alessandro v. Carro.

Byline: Stewart G. Milch

Deadlines are everywhere. Football players have to deal with a play clock. Mortgage payments must be made on time or a late fee is assessed. Frequent flyer miles expire if they're not used (on most airlines). Even Starbucks[R]; rewards expire after about 45 days. And, as lawyers, we're reminded almost daily about the importance of adhering to court-imposed deadlines. Take, for example, the recent Appellate Division, First Department case of D'Alessandro v. Carro.

In 1991, Giuseppe D'Alessandro was convicted of first-degree kidnapping, first-degree coercion, second-degree assault, first-degree attempted robbery and second-degree attempted grand larceny. He was sentenced to 15 years to life, served 14.5 years, and was released in 2007. In 2010 the Appellate Division, First Department granted D'Alessandro's application for a writ of error coram nobis. The judgment of conviction was vacated and the indictment dismissed. In so doing, the First Department noted that "appellate counsel's failure to raise a clear-cut speedy trial issue was dispositive of the question of the effective assistance of counsel."

Not surprisingly, D'Alessandro then commenced a legal malpractice action in New York County against his former criminal appellate counsel -- Carro -- alleging he was needlessly incarcerated for more than 13 years. He sought $26 million in damages.

Carro moved to dismiss D'Alessandro's claim for non-pecuniary damages resulting from the alleged malpractice. Although the First Department has specifically held non-pecuniary damages are not recoverable in legal malpractice cases, the trial court denied Carro's motion, reasoning that an Appellate Division, Fourth Department case had recently held to the contrary. Carro's counsel timely filed a notice of appeal, but did not perfect within nine months as required by the First Department's rules. D'Alessandro moved to dismiss the appeal and his motion was granted. Carro's later motion to vacate his default was denied.

After the Fourth Department case was reversed by the Court of Appeals, Carro's counsel sought leave to renew their motion to dismiss the non-pecuniary damages claims based on the purported change in the applicable law. The trial court denied the motion, finding that the First Department's dismissal of the earlier appeal was a decision on the merits and precluded further consideration by a lower court. Carro took another appeal.

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In dismissing Carro's second appeal, the First Department took the occasion -- implicitly and explicitly -- to remind practitioners of some simple rules. First, the court discussed the difference between renewal and reargument, noting that true renewal exists only when there is a change in the law. Here, there was no change because in deciding Carro's initial motion to dismiss the non-pecuniary damages claim, the trial court was bound to apply First Department precedent. Essentially, the court was telling Carro's counsel it had a winnable appeal in the first instance but blew it by defaulting. And, since First Department precedent was unchanged when the Court of Appeals reversed the contrary Fourth Department case, there was no basis for renewal.

Continuing, the court found that because Carro's application was actually one seeking reargument, and because denial of a motion seeking reargument is not appealable, Carro's second appeal had to be dismissed.

Finally, in a footnote to the decision the Court reminded practitioners of the cost of defaulting on appeal: If an appeal from an order is dismissed for lack of prosecution, it will not undertake review of the same order on a later appeal.

So what are the lessons to be taken from this case?

* Make note of your deadlines and stick to them; don't default on an appeal. Just because the First Department won't dismiss your appeal without a motion doesn't mean you can ignore the deadline with impunity.

* Know the difference between renewal and reargument. And note the difference in the criteria and time restrictions on each type of motion.

* Be clear regarding which Appellate Division's decisions bind which lower courts. If your case is in New York County and the First and Fourth Departments take contrary views of the same issue, the Supreme Court must follow the First Department's rule.

Heeding these lessons will go a long way to avoid having to tell a client you inadvertently turned a potential win into a loss. And that is a call no lawyer ever wants to make.
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Publication:Inside Counsel Breaking News
Date:Nov 6, 2014
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