CARMO v. LAZZARO (2004)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered December 19, 2002, which, inter alia, denied plaintiff's motion to amend the complaint and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff was convicted in New Jersey of harassment after a trial at which he was represented by defendant.   He now seeks to recover from defendant for legal malpractice, alleging that defendant did not competently defend him in the New Jersey criminal proceeding.   His complaint was, however, properly dismissed by the motion court since his harassment conviction remains undisturbed, such that no cause of action for legal malpractice on the ground of negligent representation in the criminal prosecution will lie (Carmel v. Lunney, 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126, and see Britt v. Legal Aid Socy., 95 N.Y.2d 443, 447-448, 718 N.Y.S.2d 264, 741 N.E.2d 109).