Schiller v Bender, Burrows & Rosenthal, LLP  2014 NY Slip Op 02422 [116 AD3d 756]  April 9, 2014  Appellate Division, Second Department is a case in which plaintiff argued that he was misled by his matrimonial attorneys and settled the case in a situation where he was “effectively compelled” to settle.  The AD did not like that argument, and affirmed the dismissal.

Today, in Carbone v Brenizer  2017 NY Slip Op 02574  Decided on March 31, 2017  Appellate Division, Fourth Department we see basically the same fact pattern, and the same settlement position, with an opposite result.  The AD quoted Schiller.

“We agree with plaintiff that Supreme Court erred in granting defendants’ motion to dismiss to the extent they relied on CPLR 3211 (a) (1). A court may grant such a motion “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mut. Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Vassenelli v City of Syracuse, 138 AD3d 1471, 1473). In an action alleging legal malpractice during the course of an underlying action that resulted in a settlement, “the focus becomes whether settlement of the action was effectively compelled by the mistakes of counsel’ ” (Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328, lv dismissed 28 NY3d 942). In her affidavit in opposition to the motion, plaintiff stated that defendants advised her that an investigation into her ex-husband’s financial assets would be a costly and lengthy process, but did not explain that she could apply to the court for her ex-husband to bear the costs of the investigation. As a result, plaintiff was convinced that she could not afford to conduct an investigation and settled the matter without knowing what she was giving up. Thus, although the settlement agreement in the underlying action contained a comprehensive waiver of plaintiff’s rights, we conclude that the language of that waiver does not conclusively establish that plaintiff was not effectively compelled to settle by defendants’ allegedly deficient representation (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757; see generally CPLR 3211 [a] [1]).

To the extent that defendants moved in the alternative to dismiss the action as barred by the three-year statute of limitations for legal malpractice actions (see CPLR 214 [6]; 3211 [a] [5]), we agree with plaintiff that defendants are not entitled to that alternative relief. ” The continuous representation doctrine tolls the statute of limitations . . . where there is a mutual understanding of the need for further representation on the specific subject matter underlying the [*2]malpractice claim’ ” (Zorn v Gilbert, 8 NY3d 933, 934; see R. Brooks Assoc., Inc. v Harter Secrest & Emery LLP, 91 AD3d 1330, 1331). Regardless of when plaintiff’s claim accrued, defendants’ representation of plaintiff in the underlying action ended, at the earliest, upon entry of the judgment of divorce in June 2014 (see Zorn, 8 NY3d at 934; Gaslow v Phillips Nizer Benjamin Krim & Ballon, 286 AD2d 703, 706, lv dismissed 97 NY2d 700).”

 

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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.