What exactly is legal malpractice, and what is not is a constant theme for debate in this field.  Whether the attorney’s acts were strategy, departure, negligence, or merely an exaggerated version of otherwise proper attorney conduct is often a question on a CPLR 3211 motion. Kagan Lubic Lepper Findelstein & Gold LLP v 325  Fifth Ave. Condominium  2015 NY Slip Op   1470(U)
August 6, 2015  Supreme Court, New York County  Docket Number: 151878/15  Judge: Cynthia S. Kern is a case we will discuss today and on Monday.

“The relevant facts according to the complaint are as follows. On qr about February 25,
2015, Kagan Lubic filed its complaint against defendants seeking recovery of the attorney’s fees
and expenses it allegedly incurred in its representation of defendants. Thereafter, defendants filed an answer to the complaint asserting various affirmative defenses and three counterclaims for legal malpractice, violation of Judiciary Law § 487 and a declaratory judgment that plaintiffs committed legal malpractice and that plaintiff is not entitled to any legal  fees for its representation of defendants. Specifically, defendants’ answer alleges as follows. Defendants hired Kagan Lubic in October 2012 to represent them as general counsel and in an action against the sponsor of 325 Fifth and certain subcontractors arising from the defective design, construction, sale, marketing  and management of the condominium building located at 325 Fifth Avenue, New York, New York (the “building”), which was allegedly plagued with defects from the outset. Defendants allege that Kagan Lubic failed to take even the most basic steps to secure remedies against those responsible for the defective design and construction of the Building and that for nearly two  years, Kagan Lubic “churned the file” and generated enormous legal bills.through prolonged ‘ negotiations and other pre-litigation tactics that were time consuming, costly and entirely I ineffective, including, inter alia, (i) retaining duplicative, superfluous experts which caused I defendants to incur thousands of dollars in additional fees; (ii) engaging i~ futile settlement discussions for nearly eighteen months; (iii) generating enormous legal fees by spending countless hours addressing inconsequential maintenance issues in the building which, in many ‘ instances, cost Jess to remediate than the time spent addressing them; (iv) :frustrating any progress I toward reaching a settlement with the sponsor with respect to the maintenance issues by delaying nearly four months before responding to the sponsor’s offer to remediate certain conditions; (v) routinely raising additional maintenance issues which resulted in further delay and costs; and (vi) allowing nearly two years to lapse without filing a complaint in the action. Defendants further allege that “[b]ut for Kagan Lubic’s dilatory tactics, the defects in the Building would have been remediated by now, and the impaired value of the Condominium units in the Building resulting from the design and construction defects and ongoing litigation would have been restored.”

“In the instant action, defendants’ answer sufficiently states a claim for legal malpractice.
The first counterclaim alleges that plaintiff”committed legal malpractice.by failing to exercise the
skill and ability reasonably to be expected from a duly licensed attorney and/or law firm engaged in the practice of law within the State of New York by, among other things, engaging in self serving
dilatory tactics that were ineffective and designed to impede settlement discussions and untimely resolution of the dispute in order to generate enormous legal fees”and that as a result of
said breach, defendants have been damaged. Specifically, defendants’ answer alleges that
plaintiff negligently delayed the resolution of their claims against the sponsor and subcontractors
only to increase their legal fees and that as a result, defendants have sustained damages,
including, but not limited to, enormous legal fees and increased costs to investigate and address
the defective conditions throughout the building, which include expert fees and rental fees for
safety bridges and construction equipment. Additionally, defendants allege that as a direct result
of plaintiffs willful delay of the underlying claims, the building’s defects’ have yet to be
remediated and that the building’s value and defendants’ access to credit pnancing has been
impaired. It is well-settled that allegations that an attorney unreasonably: delayed the resolution
of his client’s claims are grounds for malpractice sufficient to defeat a motion to dismiss. See
Lappin v. Greenberg, 34 A.D.3d 277, 280 (I st Dept 2006)(“the complaint sufficiently asserts that
defendants’ inordinate delay … resulted in a loss of principal attributable to defendants’ lack of
professional diligence”); see also VDR Realty Corp. v. Mintz, 167 A.D.2d 986, 986-87 (4th Dept
1990)(“[factual allegations of the complaint to the effect that defendant attorney unreasonably
delayed the prosecution of a landlord-tenant holdover proceeding and engaged in dilatory tactics,
thereby increasing the attorney’s fee and causing other consequential damages, state a cause of
action for legal malpractice.”)
Plaintiffs assertion that the first counterclaim must be dismissed on the ground that its
pre-litigation tactics were a reasonable strategic decision and thus, may not constitute a claim for malpractice, is without merit. Defendants do not allege that the decision! to pursue certain pre-litigation tactics and settlement discussions with the sponsor was per se malpractice but rather that
it was the manner in which that decision was implemented and pursued that constituted malpractice. Indeed, it is well-settled that while the attorney judgment nile protects “an
attorney’s selection of one among several reasonable courses of action” from a claim for
malpractice, the immunity provided for reasonable strategic decisions does not extend to
incompetent or bad faith implementation of that decision. See Ackerman. v. Kesselman, 100
A.D.3d 577 (2d Dept 2012); see also Pillard v. Goodman, 82 A.D.3d 5411 (I st Dept 2011 ). “

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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.