The decision in Krigsman v Goldberg  2018 NY Slip Op 30104(U)  January 19, 2018  Supreme Court, New York County  Docket Number: 151271 /16  Judge: Manuel J. Mendez reads like a Dickens novel in which litigation goes on until no one has any money left to litigate over.  Widow litigates over the will until she dies, and all for naught. At the end the law firm has billed $ 100,000 with no result in sight.  Now the question of discovery looms, and the attorneys would like to have the case dismissed.  Judge Mendez describes the limits of discovery.

“The essence of plaintiff’s complaint is that the moving defendants committed legal malpractice when they failed to exercise Dora’s right of election to her husband Shlomo’s estate in accordance with the EPTL§5-1.1-A. That instead of exercising the right of election the moving defendants filed objections against the Estate of Shlomo in a proceeding in Surrogate’s court to probate Shlomo’s Will, and commenced a separate action in New York State Supreme Court Kings County (Index 21521- 2003) on Dora’s behalf, against Shlomo’s Estate and his children, for the imposition of a
constructive trust and a declaration of Dora’s rights in Shlomo’s property. That Kings County action was transferred to Surrogates Court in October 2003. Dora died in November 2008 without exercising her right of election. ( see amended complaint ).”

The complaint alleges that “on July 23, 2013 the Kings County Surrogate granted a summary judgment motion filed by the executor of Shlomo’s estate, holding that since no notice complying with the statutory requirements of EPTL §5-1.1-A was served and filed before Dora’s death, her right of election was never exercised and her right of election died with her … ” that decision was appealed and “on July 15, 2015 the Appellate Division affirmed the Surrogate’s decision, holding that Dora ‘did not follow the procedure outlined in EPTL §5-1.1-A(d) for exercising a spouse’s right of election” (see amended complaint 1J1J63, 68 moving papers Exhibit A). The complaint further alleges that “despite approximately 13 years, the [constructive trust] action had gone nowhere. The Goldberg defendants failed to take adequate party and non-party discovery and otherwise prepare the action for trial prior to the discovery cut-off. In or around June 2015, when the action was finally scheduled for trial, the Goldberg defendants informed the Surrogate’s Court that they could not
try the action due to a scheduling conflict and sought an adjournment of the trial date.
The Surrogate’s Court rejected the Goldberg defendants’ eleventh hour request for an
adjournment and struck the action from the trial calendar. When the Goldberg defendants neglected the action and failed to move to restore the action to the trial calendar, the defendants in the action moved to dismiss the action for failure to prosecute. Despite having accomplished nothing for Dora or the Estate during the 13 years of legal representation, the Goldberg defendants managed to charge Dora and the Estate in excess of $100,000 for the Retained matters, most of which is attributable to litigating the Goldberg defendant’s own failure to take the necessary steps to
exercise Dora’s right of election and, to a lesser extent, working on the action which
was stricken from the trial calendar due to the Goldberg defendants’ negligent acts and
omissions. (see amended complaint 1[1[69-74 moving papers Exhibit A; decision/order
Hon. S. Johnson dated May 10, 2016 papers in opposition Exhibit A). ”

“CPLR 1[3101 (a) calls for the “production of all matter material and necessary in the prosecution or defense of an action … ” CPLR § 3124 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. However, While discovery should be liberal, information sought must be material and necessary, and meet the test of usefulness and reason (Manley v. New York City Housing Authority, 190 A.D.2d 600, 593 N.Y.S.2d 808 [1st. Dept. 1993)). The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound
discretion of the Supreme Court (Downing v. Moskovits, 58 A.D.3d 671, 873 N.Y.S. 2d 320 [2″d. Dept. 2009)). ”

“CPLR 1[3101 (a) calls for the “production of all matter material and necessary in the prosecution or defense of an action … ” CPLR § 3124 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. However, While discovery should be liberal, information sought must be material and necessary, and meet the test of usefulness and reason (Manley v. New York City Housing Authority, 190 A.D.2d 600, 593 N.Y.S.2d 808 [1st. Dept. 1993)). The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound
discretion of the Supreme Court (Downing v. Moskovits, 58 A.D.3d 671, 873 N.Y.S. 2d 320 [2″d. Dept. 2009)). “

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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.