Cohen v Sive, Paget & Riesel, P.C.   2017 NY Slip Op 32295(U)   October 27, 2017 Supreme Court,   New York County Docket Number: 154650/2013   Judge: Jennifer G. Schecter applies black-letter law to a shaken foundation legal malpractice case, leaving the legal malpractice claims standing, and the ancillary causes of action dismissed.

“In 2004, the Cohens’ neighbors–the Habers–did extensive excavation on their property as they planned to construct a house with two basement levels (Memorandum in Opposition [Opp] at 1). In August 2004, during the early stages of the excavation, the Cohens became concerned with vibrations and possible damage to their home and contacted the Habers’ contractor and the New York City Department of Buildings (DOB). ”

“On September 30, 2004, DOB inspectors determined that there was damage to the Cohens’ property that was caused by the Habers’ work (Opp, Exs 4-5) .

Days later, on October 4, 2004, plaintiffs retained SPR to represent them on issues related to the excavation, including the damage to their home (Supp at 9; Opp at 2) . Steven Barshov, a vice-president of SPR, was the Cohens contact at the firm (Supp at 5).

Over a year later, in December 2005, the Cohens made a claim with their insurance company. In a January 2006 letter, which was sent to plaintiffs and SPR, the Cohens’ insurer denied coverage because the Cohens were aware of damage to their home as early as September 21, 2004, yet failed to give “prompt notice” under the policy (Opp, Ex 8). ”

“To recover for legal malpractice, a plaintiff must demonstrate that the defendant attorney failed to exercise the 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 actual and ascertainable damages (Darby & Darby, P.C. v VSI Inern., Inc., 95 NY2d 308 [2000]; Soni v Pryor, 139 AD3d 841, 842 [2d Dept 2016]; Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; Sabalaza v Salgado, 85 AD3d 436, 437 [1st Dept 2011]). SPR has not met its heavy burden of establishing entitlement to summary judgment here. It failed to demonstrate that had plaintiffs submitted an insurance claim at the time SPR was retained, coverage would have definitively been denied (see Soni, 139 AD3d at 844 [affirming denial of summary judgment to attorneys who allegedly failed to advise their clients about the availability of insurance as they did not show that it would be “impossible” for plaintiffs to establish that had they given notice to their insurer, it would have complied with the policy’s condition precedent that notice be given “as soon as practicable”]) . 2 Significantly, in disclaiming coverage, the Cohens’ insurer explained that the Cohens were on notice of damage as of September 21, 2004, which is only two weeks before SPR was retained. Because SPR has not demonstrated that, as a matter of law, notice would have been untimely or that any potential negligence on its part could not have been the proximate cause of the plaintiffs’ loss of coverage, its motion for summary judgment is denied. “

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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.