Ziming Shen v Morvillo, Abramowitz, Grand, Iason, Silverberg, P.C. 2017 NY Slip Op 30500(U)  March 8, 2017  Supreme Court, County of New York  Docket Number: 150808/2016
Judge: Erika M. Edwards is a rare example of a criminal defense attorney legal malpractice case which is not dismissed on the typical grounds that plaintiff cannot show actual innocence.  Instead, it was dismissed on more familiar documentary evidence grounds.  In other words, plaintiff could not prove that defendant departed from good practice.  Defendant did not have to rely upon
“actual innocence” or “trial strategy” or “subsequent attorney malpractice” although each was available as a defense.

“Plaintiffs Ziming Shen and Joanna Fan (“Plaintiffs”) brought this action against Defendant Morvillo, Abramowitz, Grand, Jason, Silverberg, P.C. (“Defendant”) seeking to recover damages for Defendant’s alleged failure to conduct a sentencing hearing, called a Fatico hearing, in Plaintiffs federal criminal case. ”

“For the reasons set forth herein, Defendant’s motion to dismiss is GRANTED to the extent that Plaintiffs’ Amended Verified Complaint is dismissed against Defendants and Defendant’s motion for sanctions and other relief is DENIED. ”

“Plaintiffs’ claims set forth in their Amended Verified Complaint must be dismissed I because the causes of action ill the complaint are primarily based on Defendant’s alleged promise to conduct a Fatica hearing, Defendant’s failure to conduct the hearing, Defendant’s inherent conflict of interest through its joint representation of Plaintiffs and Defendant’s excessive billing without conducting the Fatica hearing. Plaintiffs now attempt to withdraw their malpractice cause of action and attempt to change their primary factual basis to Defendant’s excessive billing on unnecessary matters and for billing to prepare for a hearing they never intended to conduct. However, such alteration would still·be insufficient to support any of Plaintiffs’ remaining causes of action. Plaintiffs’ malpractice claim is also dismissed because Plaintiffs failed to demonstrate Defendant’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession andth~t such attorney’s breach proximately caused Plaintiffs’ actual damages (McCoy v Feinman, 99 NY2d 295, 301 [2002]). Plaintiffs also failed to establish that but for Defendant’s negligence, Plaintiffs would have.prevailed in the underlying matter in question (Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [Pt · Dept 2007]). ”

“Although Plaintiffs argue that Defendant promised to conduct a Fatico hearing in emails prior to beginning its representation, according to the evidence submitted by both parties, it is clear that Defendant never promised to conduct a Fatica hearing, but merely advised Plaintiffs in substance that they had the right to challenge the loss amount, but based on the information provided at the time, Defendant could not assess the strength of the arguments of either side. Furthermore, the retainer agreement contemplated such hearing by requiring an additional $100,000 retainer fee should a sentencing hearing be required where it would be necessary to present evidence and/or call and cross-examine witnesses regarding the loss amount and appropriate Sentencing Guidelines range. Such hearing was not promised, nor was it the sole basis for the scope of Defendant’s representation. Clearly, the documents· submitted refute Plaintiffs’ claims that Defendant made such promise.”

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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.