This Fourth Department Case has been up and down on appeal and now heads back to the trial court.  Rich Prods. Corp. v Kenyon & Kenyon, LLP  2015 NY Slip Op 04012  Decided on May 8, 2015  Appellate Division, Fourth Department  is the story of an invention by a huge multi-national food company (think Coffee-Rich).  It has a new pourable dessert.  How about South America?

“Memorandum: In this legal malpractice and breach of contract action, plaintiff appeals and defendant cross-appeals from an order that granted in part defendant’s motion for summary judgment and dismissed the first, second and fourth causes of action, and granted that part of plaintiff’s cross motion for partial summary judgment on liability with respect to the third cause of action. Plaintiff retained defendant to file and prosecute domestic and international patent applications for its invention of a nondairy pourable dessert product (hereafter, invention). Mexican authorities issued a patent for plaintiff’s invention, but a Mexican competitor successfully obtained its invalidation seven years after issuance on the ground that the application was not filed within 30 months of the priority date, a decision that was upheld on appeal. Although defendant had also applied for a patent for plaintiff’s invention in Colombia with the assistance of local counsel, the application was denied. Plaintiff commenced this action, asserting in the first and second causes of action of the amended complaint that defendant committed malpractice by “carelessly failing to timely file the Mexican national phase application of the invention” and breached its contract with plaintiff by “failing to timely file the Mexican national phase application.” Plaintiff asserted in the third and fourth causes of action that defendant committed malpractice by “carelessly failing to file the proper documents in Colombia . . . and carelessly failing to timely file the additional required documents in Colombia,” and that defendant breached its contract with plaintiff by “failing to file the proper documents in Colombia, and failing to timely file the additional required documents in Colombia.”

Contrary to plaintiff’s contention, Supreme Court properly granted defendant’s motion with respect to the first cause of action because the record establishes that defendant did not commit legal malpractice at the time of the representation. The patent was cancelled seven years after it was issued due to a retroactive change in Mexican law, and it is well settled that an attorney’s representation is “measured at the time of representation” (Darby & Darby v VSI Intl., 95 NY2d 308, 313). In support of its motion, defendant submitted the affidavit of an expert on Mexican patent law establishing that the application was timely when it was filed. We conclude that plaintiff failed to raise a triable issue of fact in opposition to that part of defendant’s motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

We further conclude that the court properly granted defendant’s motion with respect to the second cause of action, for breach of contract, because it was duplicative of the malpractice cause of action (see Long v Cellino & Barnes, P.C., 59 AD3d 1062, 1062). We likewise conclude that the court properly denied plaintiff’s motion for leave to serve a second amended complaint, because plaintiff sought only to add duplicative claims (see generally Matter of HSBC Bank U.S.A. [Littleton], 70 AD3d 1324, 1325, lv denied 14 NY3d 710).

We agree with defendant on its cross appeal, however, that the court erred in granting that part of plaintiff’s cross motion for partial summary judgment on liability on the third cause of action. Plaintiff failed to meet its initial burden with respect to that part of the cross motion, inasmuch as plaintiff failed to submit an affidavit from an expert on Colombian patent law concerning the interpretation of the Colombian legal documents and laws (see Sea Trade Mar. Corp. v Coutsodontis, 111 AD3d 483, 484-485; Warin v Wildenstein & Co., 297 AD2d 214, 215; Jann v Cassidy, 265 AD2d 873, 874-875). We therefore modify the order accordingly.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.