On some ocassions, the dissection of a case yields interesting insights.  Here is a Second Department Case: Petersen v Lysaght, Lysaght & Kramer, P.C. ,  2008 NY Slip Op 00472
Decided on January 22, 2008 ,Appellate Division, Second Department  which illustrates several points:

1.  Some cases are a problem from begining to end.  In this case there have been three appeals, and the case ends when plaintiff fails to file a note of issue, and cannot explain why, or show a meritorious case.

2.  Nassau and Suffolk notes of issue dates are sacrosanct.  "The certification order of the Supreme Court dated February 3, 2006, directing the plaintiff to file a note of issue within 90 days and warning that the action would be deemed dismissed without further order of the court if the plaintiff failed to comply with that directive, had the same effect as a valid 90-day notice pursuant to CPLR 3216 (see Louis v MTA Long Is. Bus Co., 44 AD3d 628; Hoffman v Kessler, 28 AD3d 718).

3.  Louis is more often cited for the proposition that the order of court [Kings, for example] did not have the same effect as a CPLR 3216 notice.

4.  It is usually a bad sign when the plaintiff-Appellant’s attorney is not listed on the appellate decision.  Generally, it means that the attorney did not ask for, or attend for oral argument.  Often a bad choice, it tells the court that appellant is not really interested in the outcome.

5.  This court determined that everyone here made mistakes:

"Moreover, the plaintiff’s motion papers failed to establish the existence of a meritorious cause of action. Contrary to the plaintiff’s contention, we have not previously decided this issue in his favor. On a prior appeal, we held that the Supreme Court should have denied those branches of a motion by the defendants Lysaght, Lysaght & Kramer, P.C., Peter Kramer, and Michael Balducci (hereinafter the defendants) which were to dismiss certain of the plaintiff’s causes of action insofar as asserted against them as barred by the doctrine of collateral estoppel (see Petersen v Lysaght, Lysaght & Kramer, 250 AD2d 581). On a second prior appeal, we held that the Supreme Court should have denied a motion by the defendants for summary judgment dismissing the same causes of action, on the ground that they failed to establish their prima facie entitlement to judgment as a matter of law (see Petersen v Lysaght, Lysaght & Kramer, 288 AD2d 281). Finally, on a third prior appeal, we reversed so much of an order of the Supreme Court as granted a motion by the defendants for leave to renew their prior summary judgment motion, on the ground that they failed to meet the requirements of CPLR 2221(e)(3)(see Petersen v Lysaght, Lysaght & Kramer, P.C., 19 AD3d 391). Thus, we have never previously held that the subject causes of action are, in fact, meritorious.

6.  One really should put everything into demonstrating a meritorious cause of action.  "To establish the merit of his claims, the plaintiff tendered a copy of his verified complaint, which, in relevant part, stated that "[t]he defendants made no efforts to secure a default judgment" against a defendant in an underlying personal injury action, thereby committing legal malpractice. Without even a modicum of proof that a default judgment properly could have been obtained against that defendant in the underlying action (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70-71; CPLR 3215[f]), we cannot conclude that the plaintiff established the existence of a meritorious cause of action to recover damages for legal malpractice.

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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 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.