Legal and professional malpractice cases engender two views.  One is the transactional view which we often discuss. We talk about the statute of limitations, the specificity of allegations and privity.  The second view is that of the victims of poor professional work.  Their story is often left out of the analysis.  In Herrmann v CohnReznick LLP  2017 NY Slip Op 07688  Decided on November 2, 2017  Appellate Division, First Department we see the following:  “In July of 2005, the late Edward Herrmann, a well-known actor, and his wife Star Herrmann entered into an engagement letter agreement with Frederic Kantor and Company, P.C., a predecessor firm of defendant CohnReznick LLP, to provide them and their company Baloo Enterprises Ltd. with “bookkeeping and related business management services.” Baloo is a corporation that was formed by Mr. Herrmann to lease his services as an actor to third parties, among other things.

Through this action, plaintiffs claim that defendants mismanaged their account over a nine-year period from 2005 through 2014 by, among other things, (1) failing to pay their expenses in a timely manner; (2) negligently and improperly preparing their tax returns such that they failed to take the proper deductions and owed substantial back taxes, interest and penalties; and (3) making poor investments that left them with no meaningful savings or money to pay for their daughter Emma’s college tuition. The second amended complaint alleges causes of action for (1) professional malpractice (tax); professional negligence (other services), (3) breach of fiduciary duty, (4) accounting, and (5) breach of contract for purportedly charging excessive fees.”

They lose the case for lack of specificity in pleading.

“The IAS Court’s conclusion that the allegations of the second amended complaint failed for a lack of specificity is amply supported. Plaintiffs’ allegations were not sufficient to apprise defendants of the “transactions, occurrences, or series of transactions and occurrences” at issue, particularly in light of the 73,000 pages of pre-complaint discovery that plaintiffs received and their admission that they now have all of the relevant tax returns in their possession (CPLR 3013).

The second amended complaint and other documents submitted by plaintiffs failed to specify, among other things, the tax years and specific tax returns that were purportedly prepared improperly and the specific deductions that were not taken. Nor did plaintiffs identify the credit cards or accounts at issue, what the balances were, how many months the balances remained unpaid or the specific amounts of penalties and interest that plaintiffs incurred. The allegations in support of plaintiffs’ breach of contract claim for excessive fees were also insufficient in that they did not set forth the fees that were charged and when, which fees were excessive and the proper amount that the fees should have been.

Plaintiffs’ claims for breach of fiduciary duty and an accounting, which are subject to a heightened pleading standard set forth in CPLR 3016(b), also fail (Caprer v Nussbaum, 36 AD3d 176, 194 [2d Dept 2006] [“As a general rule, accountants are not fiduciaries as to their clients except where the accountants are directly involved in managing the client’s investments”]).

Compounding the pleading deficiencies, the vagueness of plaintiffs’ allegations prevented the IAS Court from ruling on defendants’ statute of limitation defense. It is noted that the IAS [*2]Court dismissed the bulk of the claims without prejudice (with the exception of the professional negligence claim asserted on behalf of Emma Herrmann), and that plaintiffs will be afforded the opportunity to replead their claims a third time. There is no reason to disturb the court’s order.”

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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.