                           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
                              -2-                520372

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 3½ 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.
                              -3-                520372

      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
