A frequently recurring legal malpractice issue arises when one law firm handles a workers’ compensation case arising from a personal injury.  One such example is  Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP  2015 NY Slip Op 04819  Decided on June 10, 2015  Appellate Division, Second Department.  There are three lessons to be learned:

1.  Disengagement letters are vastly important;

2. When a disengagement letter is mailed, do it correctly;

3. The statute of limitations for legal malpractice accrues when the statute of limitations for the underlying personal injury action expires.

“On November 27, 2006, the plaintiff allegedly was driving his employer’s bus when he collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, a law firm, to represent him in connection with the motor vehicle accident. According to the defendant, in April 2007, it decided not to prosecute a personal injury action on the plaintiff’s behalf and advised the plaintiff of this fact by letter dated June 8, 2007, while continuing to represent the plaintiff with respect to a workers’ compensation claim. On or about October 21, 2010, the plaintiff discharged the defendant and hired a new attorney. In November 2012, the plaintiff commenced this action against the defendant to recover damages for legal malpractice. The plaintiff alleged that the defendant failed to commence a personal injury action on his behalf against the owner and operator of the other vehicle involved in the motor vehicle accident before the statute of limitations expired.

The defendant made a pre-answer motion to dismiss the complaint as time-barred, for failure to state a cause of action, and based upon documentary evidence. The defendant contended that it did not represent the plaintiff with respect to the personal injury action, based upon assertions that an attorney formerly with the defendant orally informed the plaintiff that “a personal injury action was not feasible” and thereafter sent the letter dated June 8, 2007, to the plaintiff by regular and certified mail. In support of the motion, the defendant submitted a copy of the letter and a blank certified mail receipt.

In opposition, the plaintiff’s attorney noted that the defendant did not submit an affidavit or affirmation from the attorney who allegedly mailed the letter dated June 8, 2007. The attorney further noted that the certified mail receipt was blank, and no return receipt was submitted. The plaintiff also submitted a personal affidavit wherein he stated that he retained the defendant for [*2]both his workers’ compensation claim and his personal injury claim, he was never informed that the defendant would not represent him in a personal injury action, and he never received the letter dated June 8, 2007.

In a reply affidavit, the attorney who allegedly mailed the letter dated June 8, 2007, who was now working at another law firm, stated that she “specifically advised” the plaintiff in a telephone conversation that “a personal injury action was not feasible” and as a result, the defendant “would not be representing him in a personal injury action.” She further stated that she sent the letter dated June 8, 2007, to the plaintiff via regular mail and certified mail.

The Supreme Court denied the defendant’s motion, and we affirm.”

“The statute of limitations for a legal malpractice cause of action is three years (see CPLR 214[6]). This legal malpractice action accrued when the statute of limitations for the underlying personal injury action expired (see Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 258 AD2d 321, 321;Goicoechea v Law Offs. of Stephen R. Kihl, 234 AD2d 507, 508). Here, the plaintiff’s underlying personal injury action accrued on November 27, 2006, when the accident occurred, and the statute of limitations expired three years later, on November 27, 2009 (see CPLR 214[5]). Thus, this legal malpractice action accrued on November 27, 2009, and the statute of limitations expired three years later, on November 27, 2012. This action was commenced on November 15, 2012. Therefore, this action was not time-barred.”

 

 

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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.