In a stark example of the “but for” element of legal malpractice, Hoffman v Colleluori
2016 NY Slip Op 03850 Decided on May 18, 2016 Appellate Division, Second Department stands for the principal of “no-harm, no-foul.”  Put another way, if plaintiff could not have won the underlying case, mistakes matter not.

“In 2006, the plaintiff retained the defendants (hereinafter the law firm) to commence an action in the United States District Court for the Eastern District of New York (hereinafter the federal action) against the Nassau County Police Department and certain police officers, inter alia, to recover damages for false imprisonment pursuant to 42 USC § 1983. The complaint did not contain a cause of action to recover damages for malicious prosecution under 42 USC § 1983. The District Court granted the County’s motion to dismiss the complaint, finding, among other things, that the cause of action to recover damages for false imprisonment pursuant to 42 USC § 1983 was time-barred. Subsequently, in 2008, the law firm, on behalf of the plaintiff, commenced an action in the Supreme Court, Nassau County, against the County and the same police officers, asserting, inter alia, a cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983. The Supreme Court granted the County’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the causes of action were time-barred.

In 2010, the plaintiff commenced this action against the law firm to recover damages for legal malpractice, alleging, among other things, that it had failed to timely assert the cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983 in the federal action. After joinder of issue and discovery, the law firm moved for summary judgment dismissing the complaint, contending that the plaintiff would not have prevailed on his malicious prosecution claim under 42 USC § 1983 even if it had been timely asserted in the federal action. The Supreme Court granted the motion.”

“Here, the law firm established, prima facie, that even if it had timely asserted a cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983 in the federal action, the plaintiff would not have been successful on the merits, since the plaintiff’s conviction and a judicial determination of probable cause in the underlying criminal proceeding created a presumption of the existence of probable cause for that criminal proceeding (see Knox v County of Putnam, 2012 WL 4462011, *4, 2012 US Dist LEXIS 139586, *16 [SD NY, No. 10 Civ 1671 (ER)]; Passucci v Home Depot, Inc., 67 AD3d 1470, 1471; Goddard v Daly, 295 AD2d 314, 315; Gullo v Graham, 255 AD2d 975, 976; see also Hamoudeh v Mandel, 62 AD3d 948, 949). In opposition, the plaintiff failed to raise a triable issue of fact.”

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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.