Continuous representation can bring in a firm long after the case has begun.  One example is an attorney who is retained to handle a case, and then takes the case to a new firm with him. The new firm, under proper circumstances, can be held liable to the client.

In Passeri v Tomlins  2016 NY Slip Op 05423  Decided on July 7, 2016  Appellate Division, Third Department we see an example where the law firm successfully vacates a default judgment.  Will it get out of the case?  That answer is yet to come.

“In December 2006, plaintiff retained defendant Ronald R. Tomlins to represent him in an action seeking to establish access rights to property in Columbia County. Following a February 2010 nonjury trial, Supreme Court dismissed plaintiff’s claim; a subsequent appeal filed by Tomlins on plaintiff’s behalf, in August 2010, was ultimately not perfected. In June 2012, defendant Klein Varble & Associates, P.C. (hereinafter KVA) hired Tomlins as an associate. Plaintiff commenced this legal malpractice action against Tomlins and KVA thereafter in July 2013, alleging that, as a result of Tomlins’ negligent representation, certain access rights that plaintiff sought to establish were instead extinguished, rendering his property landlocked and valueless. As to KVA, plaintiff alleged that Tomlins’ representation was continuous until approximately December 2012, and that KVA was thus jointly liable as Tomlins’ employer.

Plaintiff’s process server personally served Tomlins and KVA on separate occasions via[*2]two office employees at the KVA office. Plaintiff additionally served defendants by mail and, after receiving no answer, moved for a default judgment in February 2014, which Supreme Court entered in March 2014. Tomlins appeared at the subsequent inquest on damages and represented that he was also appearing on behalf of KVA. Judgment against defendants was entered thereafter in August 2014. KVA moved to vacate the default judgment in February 2015, alleging that the officers of KVA did not actually receive copies of the complaint and summons and that Tomlins had not made them aware of the malpractice claim. Supreme Court denied KVA’s motion, finding that KVA had failed to provide a reasonable excuse and that its failure to appear was due to “institutional shortcomings.” KVA appeals.”

“As to whether KVA demonstrated the existence of a meritorious defense, we note that “the quantum of proof needed to prevail on a CPLR 5015 (a) (1) motion is less than that required when opposing a summary judgment motion” (Abel v Estate of Collins, 73 AD3d 1423, 1425 [2010]; see Dodge v Commander, 18 AD3d 943, 945 [2005]). Central to this claim is the existence of an attorney-client relationship between Tomlins and plaintiff that was continuous with his earlier representation (see generally Deep v Boies, 121 AD3d 1316, 1318 [2014], lv denied 25 NY3d 903 [2015]; Corless v Mazza, 295 AD2d 848, 848-849 [2002]), and which existed during the period of his employment with KVA (see Huffner v Ziff, Weiermiller, Hayden & Mustico, LLP, 55 AD3d 1009, 1011 [2008]; C.K. Indus. Corp. v C.M. Indus. Corp., 213 AD2d [*3]846, 847-848 [1995]). The retainer agreement was between plaintiff and Tomlins only, “with respect to rights and obligations pertaining [to] a certain private road.” Plaintiff’s checks were made out to Tomlins individually, with the last check written in November 2010. Tomlins and Klein both state that KVA was not formed until March 2012; after Tomlins joined the firm in June 2012 he claims to have met with plaintiff “once or twice, as a courtesy,” at the physical offices of KVA, to assist him, without compensation, “with his efforts to secure a building permit.” Klein states that KVA did not have a retainer agreement with plaintiff, which he would have insisted upon, had he known of any representation, and that KVA had received no fees from plaintiff. Here, we find that KVA met its burden to set forth sufficient facts “to make a prima facie showing of legal merit” in its defense (Chase Manhattan Auto. Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774 [2000] [internal quotation marks and citation omitted]; see Bilodeau-Redeye v Preferred Mut. Ins. Co., 38 AD3d 1277, 1277 [2007]; Clark v MGM Textiles Indus., 307 AD2d 520, 521-522 [2003]).

In sum, our review of the record reveals sufficient facts supporting a reasonable excuse and a meritorious defense. Thus, in recognition of the “strong preference for deciding cases on their merits” (Wade v Village of Whitehall, 46 AD3d 1302, 1303 [2007]), we find that KVA’s motion to vacate the default judgment should have been granted.”

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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.