Today’s NYLJ reports that Judge G.B.Smith, who is reaching mandatory retirement age, and ending his present term will not be reappointed. There are a plethora of given reasons, but the most likely seems to be that if he were reappointed, then Pataki’s successor would have an immediate new judgeship. Here is a legal malpractice opinion by G.B. Smith on legal malpractice and res judicata. “97 N.Y.2d 295, *; 766 N.E.2d 914, **;
740 N.Y.S.2d 252, ***; 2001 N.Y. LEXIS 3814

Frederick F. Buechel et al., Individually and as Trustees of Trusts Entitled Biomedical Engineering Trust, Respondents, v. John N. Bain et al., Appellants, et al., Defendants.

No. 134


97 N.Y.2d 295; 766 N.E.2d 914; 740 N.Y.S.2d 252; 2001 N.Y. LEXIS 3814

October 16, 2001, Argued

December 20, 2001, Decided

SUBSEQUENT HISTORY: Writ of certiorari denied: Bain v. Buechel, 2002 U.S. LEXIS 3857 (U.S. 2002).

PRIOR HISTORY: Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 28, 2000, which affirmed (1) an order of the Supreme Court (Richard Lowe, III, J.), entered in New York County, denying motions by defendants John N. Bain and John Gilfillan, III, to dismiss plaintiffs’ amended complaint, and (2) an order of that Supreme Court (Richard Lowe, III, J.), entered in New York County, granting a motion by plaintiffs for partial summary judgment on their first three causes of action, rescinding and terminating those defendants’ interests in a certain trust, declaring fee agreements between plaintiffs and those defendants unenforceable and rescinding them ab initio, ordering those defendants to return compensation received from the trust or its predecessors, referring the issue of what fees are owing to those defendants to a special referee, and denying, in part, a cross motion by those defendants for partial summary judgment. The following question was certified by the Appellate Division: “Were the orders of the Supreme Court, as affirmed by this Court, properly made?”

Two clients brought an action seeking to terminate all interests which their former attorneys had in a trust that was created to compensate the attorneys for legal services. That action followed a prior and separate lawsuit (first action) that was filed by a former partner in the attorneys’ law firm against the clients and raised the issue of whether the trust was valid. Although the attorneys were added as parties to the first action, they chose not to participate actively in that action, but instead moved to stay the second action until the first action was resolved. In the first action, the trial court ruled that the trust was invalid. Thereafter, the second action was tried and the trial court invoked the doctrine of res judicata to rule a second time that the trust was invalid. The state supreme court held that because the issues in the first action and the second action were the same, the doctrine of res judicata applied. This was especially true because the attorneys knew that the validity of the trust was being vigorously contested in the first action and that an adverse ruling would have serious consequences for them.

OUTCOME: The state supreme court affirmed the intermediate appellate court’s judgment.

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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.