Summary judgment in favor of defendant-attorneys is common; summary judgment in favor of the plaintiff-client is rare.  Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC 2017 NY Slip Op 30430(U) February 27, 2017 Supreme Court, New York County Docket Number: 653145/2014 Judge: Nancy M. Bannon is an example of plaintiffs’ case, well-played.

“In this action to recover damages, inter alia, for legal malpractice, the plaintiffs move pursuant to CPLR 3212 for summary judgment on the issue of liability on so much of the first cause of action as alleges that the defendants committed legal malpractice in failing to perfect security interests in certain life insurance policies, and dismissing the defendants’ counterclaims for unpaid legal fees. The defendants oppose the motion. The motion is granted. ”

“The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability on so much of the legal malpractice cause of action as is premised on the failure to perfect security interests in the insurance policies. A cause of action to recover for legal malpractice requires proof “that the attorney failed to exercise ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.” Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY 3 d 4 3 8 I 4 4 2 ( 2 0 0 7 ) . Where, as here, an attorney fails to properly record a security interest or mishandles an express task for which he or she was engaged, it is a per se breach of the standard of care, and does not require expert testimony to establish a prima facie case, since ordinary experience of a fact finder would provide a sufficient basis for judging the adequacy of the professional service rendered. See Lory v Parsoff, 296 AD2d 535, 536 (2~d Dept. 2002); Deb-Jo Const., Inc. v Westphal, 210 AD2d 951, 951 (4th Dept. 1994); S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 (3rd Dept. 1988). A security interest in a life insurance policy may not be perfected by filing a UCC-1 financing statement with the Secretary of State (see ucc 9-109[d] [8]), but only by the actual possession of the original policy or the delivery of a properly executed collateral assignment to the underwriter of the policy. See Matter of Bickford, 265 App Div 266 (3rd Dept. 1942). Moreover, the plaintiffs established, prima facie, that the defendants’ failure to properly perfect the security interests in the policies proximately led to the plaintiffs’ inability enforce a lien on the policies after Progressive defaulted, and that the plaintiffs were unable to collect from Progressive in their Connecticut breach of contract action. Cf. Gladstone v Ziegler, 46 AD3d 366 (lsc Dept. 2007) (plaintiffs established liability, but could not demonstrate, prima facie, that their attorney’s failure to perfect a security interest proximately caused damages) . ”

“Rule 1.2(c) of the Rules of Professional Conduct provides that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel.” Generally, where the scope of representation is properly limited, an attorney may not be held liable for his or her failure to undertake a task that falls outside of the scope of representation. See generally AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 (2007). The court, however, rejects the defendants’ contention that their submission is sufficient to defeat summary judgment. Even if there are factual disputes as to whether the defendants received any limiting instructions from Kelly and whether Kelly had authority to bind the plaintiffs with respect to the scope of representation, the plaintiffs established that the defendants, by filing the UCC-1 statements and billing the plaintiffs for that work, voluntarily assumed the obligation to perfect the security interests. Where one assumes a duty to act, the failure to perform the act in a proper fashion constitutes a breach of the assumed duty, and may render the actor liable in negligence. See Applewhite v Accuhealth, Inc., 21 NY3d 420, 431, 434 (2013); Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 587 (1994); Podesta v Assumable Homes Dev. II Corp., 137 AD3d 767, 769 (2nd Dept. 2016); see generally Katz v United Synagogue of Conservative Judaism, 135 AD3d 458, 461 (1st Dept. 2016). Therefore, where a fiduciary, by its conduct, voluntarily assumes the obligation to properly deliver to, or file documentation with, a particular entity or governmental agency, the fiduciary’s failure to timely or properly deliver or file the documentation constitutes actionable negligence if it proximately causes damage to the plaintiff. See Nilazra, Inc. v Karakus, Inc., 136 AD3d 994, 996 (2nd Dept. 2016) (failure to file a certain notice with the Department of Taxation & Finance); see also AG Capital Funding Partners, L.P. v State Street Bank & Trust Co., 5 NY3d 582, 594 (2005) (failure to deliver secured indebtedness statement to a bank); Podesta v Assumable Homes Dev. II Corp., supra (failure to record partial satisfaction of mortgage) .”

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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.