State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 12, 2015 520372 

________________________________

JOHN C. McPHILLIPS,

Appellant,

v MEMORANDUM AND ORDER

WESLEY E. BAUMAN,

Respondent.

________________________________

Calendar Date: September 16, 2015

Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.

__________

Lewis B. Oliver Jr., Albany, for appellant.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D.

Hitsous of counsel), for respondent.

__________

Lahtinen, J.P.

Appeal from an order of the Supreme Court (Lynch, J.),

entered April 4, 2014 in Albany County, which granted defendant's

motion to dismiss the complaint.

Plaintiff, a physician employed by the Department of

Corrections and Community Supervision, commenced this action

alleging legal malpractice by defendant, an Assistant Attorney

General assigned to represent plaintiff and others in a federal

lawsuit brought by the estate of an inmate who died while

incarcerated. Many of the underlying facts are set forth in our

recent decision involving plaintiff's Court of Claims action

arising from the same incident (McPhillips v State of New York,

129 AD3d 1360 [2015], lv dismissed 26 NY3d 976 [2015]). After an

inmate died in a shock incarceration program, a report by the

Commission of Correction Medical Review Board was critical of
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plaintiff, who wrote a letter disputing the report which, in

turn, prompted a November 2010 strongly worded memorandum

unfavorable to plaintiff written by a Commission employee. In

the early stages of the federal lawsuit by the inmate's estate,

defendant provided the November 2010 memorandum to opposing

counsel, who forwarded it to a newspaper, resulting in a story in

April 2011 that quoted some of the unfavorable language about

plaintiff contained in the memorandum. 

Within days, plaintiff was added as a named defendant in

the federal action. Although he initially requested that the

Attorney General represent him pursuant to Public Officers Law

§ 17, he soon urged that the state should pay for private counsel

for him because the Attorney General had a conflict in that he

was also representing the defendant correction officers who

allegedly caused or contributed to the inmate's death through

their separate culpable conduct. Shortly thereafter and while

his request for private counsel was under review, and prior to

the commencement of discovery in the federal action, the Attorney

General requested that plaintiff allow his office to represent

him in settlement negotiations to resolve the federal action in

full without imposing any liability or costs on him. Plaintiff

did not consent but, instead, approximately 31⁄2 months later,

commenced a CPLR article 78 proceeding to compel the state to

provide him with private counsel. About seven weeks later and

before a decision was made on plaintiff's application for private

counsel, the federal lawsuit was dismissed with prejudice as to

plaintiff and settled with regard to the remaining defendants.

This action followed in July 2013 with plaintiff alleging

three bases for malpractice: defendant ignored a conflict of

interest; defendant neglected to keep the 2010 memorandum

confidential or seek redaction of the strongly worded unfavorable

parts thereof; and defendant failed to inform plaintiff in a

timely fashion of the existence of the 2010 memorandum (which he

asserts he did not know about until 2013) so that he could have

pursued a defamation action. He sought damages for injury to his

professional reputation and mental anguish. Defendant moved to

dismiss the complaint. Supreme Court granted the motion and this

appeal ensued.
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We affirm. Elements of a cause of action for legal

malpractice include the existence of an attorney-client

relationship (see Arnold v Devane, 123 AD3d 1202, 1203 [2014]),

that "the attorney failed to exercise the ordinary reasonable

skill and knowledge commonly possessed by a member of the legal

profession and that the attorney's breach of this duty

proximately caused plaintiff to sustain actual and ascertainable

damages" (Dombrowski v Bulson, 19 NY3d 347, 350 [2012] [internal

quotation marks and citations omitted]; see Hyman v Burgess, 125

AD3d 1213, 1215 [2015]). It is undisputed that the federal

action against plaintiff was dismissed with no admission of

wrongdoing by him, as well as no monetary payment or liability by

plaintiff. Although his treatment of inmates with asthma is

purportedly now more closely monitored, there is no allegation

that plaintiff lost his state job or suffered any economic harm

in his employment. Plaintiff's complaint did not allege

pecuniary damages and "'the established rule limit[s] recovery in

legal malpractice actions to pecuniary damages'" (Kaufman v

Medical Liab. Mut. Ins. Co., 121 AD3d 1459, 1460 [2014], lv

denied 25 NY3d 906 [2015], quoting Dombrowski v Bulson, 19 NY3d

at 352).

Even if there was a conflict of interest constituting an

ethical violation as alleged by plaintiff, such a violation would

not give rise to a viable legal malpractice claim absent

pecuniary damages (see Guiles v Simser, 35 AD3d 1054, 1055-1056

[2006]). The absence of such damages is also fatal to the

alleged disclosure error and, moreover, we recently held that the

disclosed memorandum was "clearly pertinent" to the pending

federal action and defendant's disclosure thereof was "shielded

by absolute privilege" (McPhillips v State of New York, 129 AD3d

at 1362). Plaintiff urges that he does not need to allege

pecuniary damages regarding defendant's failure to advise of a

potential defamation action because that potential action

involved statements that tended to impugn his professional

ability (see Schindler v Mejias, 100 AD3d 1315, 1316 [2012]). 

However, we need not directly address that issue because we agree

with Supreme Court that, under the circumstances of this case,

defendant did not have a duty in his representation pursuant to

Public Officers Law § 17 to advise plaintiff of a potential

separate private action involving nonparties (see Matter of
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O'Brien v Spitzer, 7 NY3d 239, 243 [2006] ["The purpose of Public

Officers Law § 17 is, in essence, to provide insurance against

litigation"]; Frontier Ins. Co. v State of New York, 87 NY2d 864,

867 [1995]). The remaining issues are either academic or

unavailing.

Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court