Academic journal article Albany Law Review

Reversing Course: A Critique of the Court of Appeals New Rules for Unjust Enrichment and Criminal Legal Malpractice Actions

Academic journal article Albany Law Review

Reversing Course: A Critique of the Court of Appeals New Rules for Unjust Enrichment and Criminal Legal Malpractice Actions

Article excerpt


This article will discuss recent developments by the Court of Appeals on the doctrine of unjust enrichment and on the elimination of non-pecuniary damages in criminal legal malpractice actions. Specifically, the article will examine the cases of Georgia Malone & Co. v. Ralph Rieder (1) and Dombrowski v. Bulson. (2)

In Georgia Malone, a divided Court of Appeals held that a plaintiffs unjust enrichment claim could be dismissed as a matter of law at an early pleading stage. (3) The five-judge majority adopted a heightened pleading requirement, which ignores almost one hundred years of established precedent (4) and relies on unfounded policy justifications. (5) The majority's opinion disregards the equitable concerns involved and creates a mandatory pleading rule requiring a connection between the plaintiff and the defendant. (6) The court's new rule is contrary to the remedy of unjust enrichment. (7)

In Dombrowski, a unanimous Court of Appeals held a client could not seek damages for loss of liberty and emotional distress in a criminal legal malpractice action against his attorney. (8) The Dombrowski opinion is based on a faulty analysis and unproven policy rationales. (9) Also, the opinion is not in step with modern principles of law permitting recovery of non-pecuniary damages in such actions. (10) Finally, a decision to immunize defense counsel from non-pecuniary damages in criminal legal malpractice actions should be made by the legislature and not by the Court of Appeals. (11)

The Georgia Malone and Dombrowski decisions demonstrate the Court of Appeals' willingness to dismiss civil claims at the pleading stage for speculative policy justifications not included in the evidentiary record. (12) These decisions are unfortunate departures from established case law and frustrate the letter and spirit of the liberal pleading requirements in the CPLR. (13)


"The essential inquiry in any action for unjust enrichment ... is whether it is against equity and good conscience to permit the defendant to retain what is sought [by the plaintiffs] to be recovered." (14) For almost one hundred years, since its holding in Miller v. Schloss, (15) the Court of Appeals has asked if a benefit has been "conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant ... and whether the defendant's conduct was tortious or fraudulent." (16) The court's focus has been on an equity and good conscience test, (17) which, at the pleading stage, must be afforded a liberal construction with every favorable inference being given to the plaintiff. (18)

The Court of Appeals has long recognized there is a class of cases "where the law prescribes the rights and liabilities of persons who have not in reality entered into any contract at all with one another." (19) These relationships are constructive contracts based on the equitable principle that one should not be allowed to enrich oneself unjustly at the expense of another, so an obligation is created by law in the absence of an agreement. (20)

Thus in Bradkin v. Leverton, (21) the Court of Appeals reversed the unjust enrichment dismissals of lower courts. (22) Quoting Miller v. Schloss, Chief Judge Stanley Fuld stated: "[a] quasi or constructive contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another." (23) Chief Judge Fuld concluded that "[a]lthough there was no agreement between them, express or implied, the defendant received a benefit from the plaintiffs services under circumstances which, in justice, preclude him from denying an obligation to pay for them." (24) Chief Judge Fuld did not rely on or analyze the relationship between the parties in terms of a connection or awareness standard. (25)

Similarly, in Paramount Film Distributing Corp. v. State of New York, (26) a divided court, speaking through Chief Judge Charles D. …

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