Aside from the fact that almost all of the parties to this transaction, as well as to the legal representation are dead, the point of this case is that courts will not allow speculation on what advice might have been given and how a specific person might have reacted to that advice, when there is no objective way of answering the question.

Gourary v Green  2016 NY Slip Op 06888  Decided on October 20, 2016  Appellate Division, First Department is the story of an elderly man’s disposition of a corporation and how it affected the next generation.

“Plaintiff, the administrator of the estate of his deceased father, Paul Gourary (Gourary), alleges that, in connection with the May 2006 sale of Gourary’s 50% share in a New York S-corporation to defendant Macomber, the son-in-law of the corporation’s other 50% shareholder, Oliver Laster (since deceased) (Laster), defendant Paul Green (since deceased) and his law firm, defendant Green & Ettinger, committed legal malpractice and fraud in connection with their representation of Gourary in the sale, enabling Macomber to purchase Gourary’s interest in the corporation at a steep discount.

The Green defendants established prima facie, through deposition testimony and two experts’ affidavits, that the sale was consistent with Gourary’s objectives, that Green did not represent Macomber before the deal was struck, and that the evidence did not support an inference that Green’s representation violated the ethics rules or was inconsistent with the standard of professional conduct (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Moreover, defendants established the absence of proximately caused damages; since “there is no way to know whether the advice not given . . . would have altered the [outcome],'” the claim of damages is speculative (id. at 436; see also Fielding v Kupferman, 104 AD3d 580 [1st Dept 2013], lv denied 21 NY3d 859 [2013]; Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 652 [1st Dept 2012]).

Contrary to plaintiff’s contention, the Green defendants were not required to submit an expert opinion on the issue of causation. Unlike issues implicating “the byzantine world of immigration law” (see Suppiah v Kalish, 76 AD3d 829, 833 [1st Dept 2010], appeal withdrawn 16 NY3d 796 [2011]), the issue of causation in this case rests on the “discrete factual question” of how Gourary, a lay person, would have reacted to certain information (see Wo Yee Hing Realty Corp. v Stern, 99 AD3d 58, 63 [1st Dept 2012]).

In opposition, plaintiff failed to raise a triable issue of fact. There is no evidence that Green represented Macomber and Gourary dually in connection with the negotiations for the sale of Gourary’s share of the corporation. Before making an offer, Macomber had consulted a tax lawyer; later he retained separate counsel to provide services in connection with the transaction. Moreover, Green’s structuring of the transaction favored Gourary’s interests over those of Macomber. Plaintiff’s real estate law expert’s opinion concerning the alleged dual representation was made without the benefit of knowing what, if anything, Green and Gourary discussed with [*2]respect to the price of the sale, and assumes that there were either no such discussions or that, on Green’s side, the discussions failed to sufficiently promote Gourary’s interests. In contrast to Papaioannou v Lukas (170 AD2d 289 [1st Dept 1991]), relied upon by plaintiff, there are no questions here about the nature of advice Green provided Gourary. The nature of that advice is simply unknown.”

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.