Bullock v Miller  2016 NY Slip Op 08268  Decided on December 8, 2016  Appellate Division, Third Department is a perfect example of how the “but for” portion of the legal malpractice world works, or alternatively, an example of how court tend to protect attorneys from their own mistakes.

Plaintiff demonstrates at least one statutory shortcoming where the attorney simply failed to argue that the child support statute required certain missing findings of fact.  That however is just not enough to avoid summary judgment.

“Plaintiff retained defendant Miller Mayer, LLP to represent her in a divorce action, with the legal work performed by defendant R. James Miller. Miller commenced an action for divorce on plaintiff’s behalf by filing a summons with notice in January 2009, but did not serve it, instead electing to prosecute a second action commenced in July 2009. Plaintiff and her husband appeared for trial on September 3, 2010, and counsel placed a stipulation on the record that resolved all outstanding issues. They stipulated as to the division of expenses relating to two children under the age of 21 and also agreed, in conclusory fashion, to waive any other child support obligation. Miller agreed to, but did not, submit a proposed judgment of divorce for signature by December 1, 2010. Supreme Court received and executed a judgment of divorce [*2]later that month, and executed an amended judgment of divorce in February 2011.

Plaintiff retained new counsel and made an unsuccessful motion in the divorce action to, among other things, reopen the issue of child support by vacating the relevant provisions of the stipulation. She then commenced action No. 2 and alleged that defendants had committed legal malpractice in their representation of her. Following joinder of issue and discovery, defendants moved, and plaintiff cross-moved, for summary judgment. Plaintiff appeals from the July 2014 order granting defendants’ motion and dismissing the complaint in action No. 2”

“Turning to the record that is before us, we affirm. In order to succeed on a claim for legal malpractice, a plaintiff must show “that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (Arnold v Devane, 123 AD3d 1202, 1203-1204 [2014] [internal quotation marks, brackets and citations omitted]; see Dombrowski v Bulson, 19 NY3d 347, 350 [2012]). Defendants, as the proponents of a motion for summary judgment, bear the initial burden of “present[ing] evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements” (Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; accord Miazga v Assaf, 136 AD3d 1131, 1133-1134 [2016], lv dismissed 27 NY3d 1078 [2016]). Contrary to defendants’ contention, the “conclusory, self-serving statements” of Miller regarding the applicable standard of care did not constitute “expert . . . evidence which would tend to establish . . . that [defendants] did not” depart from it (Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284 [1999]; see 400 E. 77th Owners, Inc. v New York Eng’g Assn., P.C., 122 AD3d 474, 475 [2014]; cf. Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d at 926). As a result, the issue “distills to whether defendant[s] met [their] threshold burden as to the element of either proximate cause or damages” (Arnold v Devane, 123 AD3d at 1204; see Schrowang v Biscone, 128 AD3d 1162, 1164 [2015]; Carey v Campbell, 93 AD2d 923, 923-924 [1983]).

Defendants met that initial burden by submitting competent proof — including the affidavit of Miller, his and plaintiff’s deposition testimony and documentary evidence — that any breach of duty on defendants’ part did not result in damages to plaintiff. Plaintiff and her husband both claimed to be the custodial parent of their children, and she asserted that Miller committed malpractice by failing to pursue an award of child support on her behalf. Miller explained that he did not do so because plaintiff would not have been found to be the custodial parent, a belief justified by the refusal of Supreme Court to order either party to pay temporary child support and an investigation that led Miller to believe that the children either lived on their own or spent the bulk of their time with the father. Miller therefore declined to do anything that could backfire and end in plaintiff paying child support, and instead negotiated a settlement in which neither party would pay child support. In response to this proof, plaintiff continued to assert that she was the custodial parent. She provided nothing to show that an application for [*3]child support would have succeeded, however, and did not raise a question of fact as to whether she was damaged by the failure to make one (see Miazga v Assaf, 136 AD3d at 1134; Sevey v Friedlander, 83 AD3d 1226, 1227 [2011], lv denied 17 NY3d 707 [2011]).

Plaintiff’s additional challenges to the actions of defendants do not demand extended discussion. She complained that defendants committed malpractice in not prosecuting the first divorce action commenced. That being said, defendants provided proof that she was benefitted by that delay, as settlement negotiations were underway prior to the commencement of the second divorce action and plaintiff received far more in voluntary spousal support during that period than she was entitled to (and subsequently received) in court-ordered maintenance. Lastly, while Miller admittedly failed to include necessary language in the stipulation regarding the presumptively correct basic child support obligation and the reasons for deviation from that amount (see Domestic Relations Law § 240

[1-b] [h]), as noted above, there is little to show that plaintiff was damaged by the failure to pursue the issue of child support more vigorously [FN2]. Her remaining contentions, to the extent that they are properly before us, have been considered and rejected.”

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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.