Either Volvo owned the car and leased it to the auto accident defendant or it did not.  Simple issue, no?  How did this simple issue morph into an auto accident trial where Jacoby & Meyers represented plaintiff and the proofs were not in place before the jury.  More puzzling, how did this proof elude the legal malpractice case thereafter?

Verdi v Jacoby & Meyers, LLP  2017 NY Slip Op 07294  Decided on October 18, 2017  Appellate Division, Second Department seems to be more about missed opportunities than anything else.

“In this legal malpractice action, the plaintiff alleges that Volvo Financial North America (hereinafter Volvo) was the lessor of a vehicle that struck the plaintiff’s vehicle in the rear in April 2005. The accident occurred prior to the enactment of the Graves Amendment (49 USC § 30106), which exempts the owner of a leased or rented motor vehicle from liability for personal injuries resulting from the use of such vehicle ” if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles and (ii) engaged in no negligence or criminal wrongdoing'” (Anglero v Hanif, 140 AD3d 905, 906, quoting Bravo v Vargas, 113 AD3d 579, 580). The plaintiff further alleges that the defendants deviated from good and accepted legal practice in neglecting to name Volvo as a defendant in a personal injury action they commenced on behalf of the plaintiff.

The legal malpractice action proceeded to a bifurcated trial. Following the close of the plaintiff’s proof on the issue of liability, the defendants moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. The defendants argued, inter alia, that the plaintiff failed to establish that the offending vehicle was owned by or leased from Volvo. The Supreme Court granted the defendants’ motion on the record during proceedings held on December 11, 2013. More than a month later, the plaintiff moved for leave to enlarge his time to make a posttrial motion. While that motion was pending, the plaintiff made a posttrial motion, among other things, for judgment in his favor as a matter of law on the issue of liability. The court denied the motion to enlarge the time to make a posttrial motion, and denied the posttrial motion, in effect, as untimely. By judgment entered January 8, 2015, the court dismissed the complaint. The plaintiff [*2]appeals, and we affirm.

The Supreme Court properly granted the defendants’ motion for a directed verdict pursuant to CPLR 4401. ” A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party'” (Geeta Temple-Ashram v Satyanandji, 142 AD3d 1132, 1134, quoting Szczerbiak v Pilat, 90 NY2d 553, 556; accord Clarke v Phillips, 112 AD3d 872, 874). To establish a cause of action to recover damages for legal malpractice, a plaintiff must establish the elements of proximate cause and damages, i.e. “a plaintiff must show that but for the attorney’s negligence, he or she would have prevailed on the underlying claim” (Rau v Borenkoff, 262 AD2d 388, 389; see Di Giacomo v Michael S. Langella, P.C., 119 AD3d 636, 638), by proving “a case within a case” (McKenna v Forsyth & Forsyth, 280 AD2d 79, 82 [internal quotation marks omitted]). To prevail on a cause of action asserted pursuant to Vehicle and Traffic Law § 388, a plaintiff is required to demonstrate, among other things, that the defendant he sought to hold vicariously liable was the owner of the vehicle at the time he sustained his injury (see Vehicle and Traffic Law § 388[a]). In this action, the plaintiff failed to adduce prima facie evidence that the offending vehicle was owned by or leased from Volvo on the date of the accident (see Vehicle and Traffic Law §§ 128, 388; Godlewska v Niznikiewicz, 8 AD3d 430, 431). Given that there is no evidence that the offending vehicle was owned by a commercial lessor that could have been held vicariously liable for the plaintiff’s injuries under Vehicle and Traffic Law § 388 prior to the enactment of the Graves Amendment, the plaintiff failed to establish that he would have prevailed in an action against Volvo had one been commenced.

Moreover, despite the plaintiff’s assertions in opposition to the defendants’ CPLR 4401 motion, the record does not demonstrate that the defendants conceded that the offending vehicle was owned by or leased from Volvo. In this regard, the defendants did not admit in their answer that the vehicle was leased or that Volvo was the lessor or owner of the vehicle (see CPLR 3018[a]).

Consequently, the plaintiff failed to present a prima facie case of legal malpractice (see Dawson v Schoenberg, 129 AD3d 656), and the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint was properly granted (see Szczerbiak v Pilat, 90 NY2d 553).”

 

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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.