As we started discussing yesterday, Melcher v Greenberg Traurig LLP  2015 NY Slip Op 30855(U)  May 18, 2015  Supreme Court, New York County  Docket Number: 650188/2007  Judge: O. Peter Sherwood is a historic case.  In the Court of Appeals, it was determined that this deceit statute is not really a statute at all; it is part of the common law.  There are a number of lesser issues that are addressed in this second visit to Supreme Court.

“This action was commenced on June 25, 2007, with a single cause of action pursuant to Judiciary Law Section 487, which provides: “[a]n attorney or counselor who: I. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … , is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” Plaintiff James L. Melcher claims the defendants, Greenberg Traurig LLP (GT) and GT partner Leslie Corwin, deceived the court and the plaintiff in an earlier litigation. The defendants in this case represented defendants Apollo Medical Fund Management L.L.C. (Apollo) and Apollo principal Brandon Fradd in a suit brought by the plaintiff in 2003 (the Apollo Action).

The parties dispute whether Melcher may pursue this claim in a separate action, or is limited to bringing it in the underlying Apollo Action. Defendants argue that this action is barred by New York’s rule against claim splitting, citing Alliance Network LLC v Sidley Austin LLP, 43 Misc 3d 848 (Sup Ct, New York County 2014)(“The First Department has held that a party’s remedy for a violation of Section 487 stemming from an attorney’s actions in a litigation ‘lies exclusively in that lawsuit itself, … not a second plenary action”‘) quoting Yalkowsky v Century Apartments Assoc., 215 AD2d 214, 215 (1st Dept 1995). Melcher argues otherwise, relying on Amalfitano v Rosenberg, 12 NY3d 8 (2009) and Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15 (2014)(allowing this litigation to proceed and reversing the First Department decision granting a motion to dismiss on statute of limitations grounds).

In a similarly positioned case, Zimmerman v Kohn (Index No. 652826/2013, 2014 WL 1490936 [Sup Ct, NY County, April 11, 2014]), the court determined that the plaintiff in an underlying action could not subsequently bring an action based on Judiciary Law§ 487 against the underlying defendants’ counsel when the plaintiff had raised the deceit allegations in that action and settled the matter before the evidentiary hearing. The underlying action was brought in the United States District Court for the Eastern District of New York against Poly-Prep Day School for the alleged cover-up of sexual abuse of students by a coach (id. at 1 )(the Poly-Prep Action). During the course oflitigating the Poly-Prep Action, Zimmerman sought “sanctions for fraud committed on the Court” by the defendants’ counsel (id). Those issues were held in abeyance pending an evidentiary hearing (id.). The parties subsequently entered into a settlement agreement and stipulated to dismiss the action with prejudice (id.). In the Judiciary Law§ 487 claim Zimmerman subsequently brought in New York State Supreme Court, the court noted that”[ o ]nee a claim for violation of Judiciary Law [Section] 487 is raised in another action, the remedy lies exclusively in that lawsuit regardless of whether the attorneys are parties to the action” (id. at 2). Upon review, the Appellate Division First Department affirmed but not on grounds of estoppel as the Supreme Court had found. Instead, the Appellate Division concluded that plaintiff had suffered no damages and affirmed on that basis (see Zimmerman, 125 AD3d at 414). The Appellate Division did not address the issue of estoppel. Accordingly, there is no estoppel issue to be decided by this court. The claim has not been waived because Melcher specifically declined to release any claims against Corwin and GT in the Apollo Action settlement agreement (Reply Memo at 4, n 3; January 14, 2014 Settlement Agreement, Plaintiff’s Exhibit I 08).”

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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.