Negligence is negligence, no?  Well, they are different as Amendola v Brookhaven Health Care Facility, LLC

2017 NY Slip Op 04090 [150 AD3d 1061]  May 24, 2017  Appellate Division, Second Department points out.

“The plaintiff Raymond Amendola (hereinafter the plaintiff), and his wife suing derivatively, commenced this action against Brookhaven Health Care Facility, LLC (hereinafter Brookhaven), and The McGuire Group (hereinafter together the defendants) to recover damages for personal injuries the plaintiff contends he sustained during a physical therapy session conducted by a physical therapist at Brookhaven. Following discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the defendants’ motion.

The Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for ordinary negligence, as the allegations in the complaint only support a cause of action to recover damages for professional malpractice (see Glasgow v Chou, 33 AD3d 959, 961 [2006]; see also D’Elia v Menorah Home & Hosp. for the Aged & Infirm, 51 AD3d 848, 850 [2008]). However, the court properly determined that the defendants failed to establish, prima facie, that they were not vicariously liable for the alleged professional malpractice of the physical therapists or physical therapy assistants administering rehabilitation services at their facility (see Sirignano v Jencik, 123 AD3d 1002, 1003 [2014]; Rivera v Fenix Car Serv. Corp., 81 AD3d 622, 623-624 [2011]; see also Diller v Munzer, 141 AD3d 628, 629 [2016]; Loaiza v Lam, 107 AD3d 951, 953 [2013]).

With respect to the allegations of professional malpractice, although the defendants [*2]made a prima facie showing that they did not deviate from good and accepted standards of physical therapy practice, through the submission of deposition testimony, medical records, and the affidavit of a licensed physical therapist (see Shank v Mehling, 84 AD3d 776, 777-778 [2011]), the affidavit of a licensed physical therapist submitted by the plaintiffs in opposition was sufficient to raise a triable issue of fact as to whether the treatment departed from good and accepted physical therapy practice (see Nisanov v Khulpateea, 137 AD3d 1091, 1094 [2016]; Guctas v Pessolano, 132 AD3d 632, 633 [2015]). Summary judgment is not appropriate in a malpractice action where, as here, the parties adduce conflicting expert opinions (see Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 AD3d 739 [2017]; Elmes v Yelon, 140 AD3d 1009, 1011 [2016]).”

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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.