Opinion
97 Civ. 1831 (MGC)
May 2, 2002
MEMORANDUM OPINION
This is a negligence action against the lawyers who represented the plaintiff in a criminal case in which plaintiff was convicted. The complaint named three lawyers as defendants. The claim against Harold Scheiowitz has previously been dismissed. A motion to dismiss the complaint for failure to state a claim is now pending. The motion is granted because plaintiff has not alleged and cannot allege an essential element of his claim.
Under the law of New York, a claim for legal malpractice arising from negligent representation in a criminal proceeding may not be maintained where a claimant's criminal conviction has not been vacated. Carmel v. Lunney, 70 N.Y.2d 169, 511 N.E.2d 1126, 518 N.Y.S.2d 605 (1987); Pfeiffer v. Hoffman, 251 A.D.2d 94, 674 N.Y.S.2d 32 (1st Dept. 1998). The existence of an undisturbed criminal conviction bars a suit for legal malpractice in the proceeding leading to the conviction.
Plaintiff does not allege, and cannot allege that his criminal conviction has been overturned. Accordingly, the complaint is dismissed for failure to state a claim upon which relief can be granted.