Judiciary Law § 487 is an ancient statute, emanating from long-ago England centuries before Brexit.  In Charles Deng Acupuncture, P.C. v Titan Ins. Co.  2016 NY Slip Op 26211  Decided on June 30, 2016  Civil Court Of The City Of New York, Kings County  Montelione, J. we see (what appears to us) a unique and completely new application of the statute to litigation.

Deng is a no-fault first-party no-fault benefits case, which are very common in Civil Court, and often end up in the Appellate Term.  Put succinctly, health providers are in a constant battle with auto insurance companies over payment, which requires a somewhat complicated billing/denial/examination under oath process.

Here is the pay-off paragraph, which discusses whether a transcript of a no-show is hearsay and whether it may be a business record exception to the hearsay rule.

“When the issue involves EUOs, defendant must prove that its EUO requests were timely mailed and that plaintiff’s assignor failed to appear for same. See Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc 3d 134(A), 2011 NY Slip Op. 50622(U) (App Term 9th & 10th Jud. Dists. 2011); Crotona Heights Medical, P.C. v. Farm Family Casualty Ins. Co., 27 Misc [*2]3d. 134(A) (App Term 2d, 11th & 13th Jud. Dists. 2010); Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept. 2006). “Such a showing is established by affidavit on motion for summary judgment and by live testimony at trial (see generally Great Wall, 16 Misc. id at 25; Power Acupuncture P.C. v. State Farm Mut. Auto Ins. Co., 11 Misc 3d 1065, 816 N.Y.S.2d 700, 2006 NY Slip Op 50393[U] [Civ. Ct, King’s County 2006]; Roberts Physical Therapy, P.C. v. State Farm Mut. Auto Ins. Co., 14 Misc 3d 1230(A), 836 N.Y.S.2d 495, 2006 NY Slip Op 52565[U] [Civ-Ct, Kings County 2006]; AVA Acupuncture P.C. v. ELCO Administrative Services Co., 10 Misc 3d 1079(A), 814 N.Y.S.2d 889, 2006 NY Slip Op 50158[U] [Civ Ct, Kings County 2006].” See New Era Massage Therapy PC v. Progressive Cas. Ins. Co., 2009 NY Misc. LEXIS 2554, 242 N.Y.L.J. 2 (NY Sup. Ct. 2009).”

This court must now consider whether the EUO transcripts, some of which are electronically signed, meet the requirements of the business exception to the hearsay rule under CPLR 4518 (a). Here, whether in or out of court, an attorney is an officer of the court (22 NYCRR § 700.1[a]) and is subject to discipline and severe sanctions if s/he misleads the court (Judiciary Law § 487, Appendix, Rules of Professional Conduct Rule 3.3).”

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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.