Oliveto Holdings, Inc. v Denis W. Light, PLLC  2016 NY Slip Op 02063  Decided on March 23, 2016  Appellate Division, Second Department  decided yesterday is a case much more complicated than the Second Department decision suggests, In the  Supreme Court decision and order  the court recognizes that there was a foreclosure action started and lost at trial, then reversed on appeal.  The reversal on appeal set up the legal malpractice case.

There are two lines of argument on when a legal malpractice action commences.  One is the traditional “date of the mistake” commencement and one recognizes that as of the date of the mistake not all the elements of legal malpractice yet exist, as in Ackerman v. Price Waterhouse.  There, the standard is when all of the elements exist so as to make out a prima facie case of legal malpractice and “an injured party can obtain relief in court.”  In Ackerman, an IRS assessment came more than three years after the mistake in filing.

Here, the Court simply says that more than three years has passed.  It wrote: “The defendants demonstrated, prima facie, that the plaintiff’s legal malpractice cause of action accrued more than three years prior to the time this action was commenced. In opposition, the plaintiff failed to raise a question of fact (see CPLR 214[6]; Benjamin v Allstate Ins. Co., 127 AD3d 1120; Landow v Snow Becker Krauss, P.C., 111 AD3d 795; Elstein v Phillips Lytle, LLP, 108 AD3d 1073;DeStaso v Condon Resnick, LLP, 90 AD3d 809; McCormick v Favreau, 82 AD3d 1537). Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that it was barred by the applicable statute of limitations.”

 

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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.