A decade long real estate litigation which eventually ends in a legal malpractice case with sanction hearings.  This particular decision is about whether the judge who presided over the 10 year long real estate case should then have recused himself in the subsequent proceedings.

If Fulton Mkt. Retail Fish Inc. v Todtman, Nachamie, Spizz & Johns, P.C.  2018 NY Slip Op 01038  Decided on February 13, 2018 Appellate Division, First Department teaches us anything, it is that legal malpractice cases ratchet up the stakes and the atmosphere, and can lead to strong emotional responses from bench and bar.

“The court acted within its discretion in denying plaintiffs’ motion for leave to renew their recusal motion (see People v Moreno, 70 NY2d 403, 405 [1987]; People v Glynn, 21 NY3d 614, 618-619 [2013]; Mehulic v New York Downtown Hosp., 140 AD3d 417 [1st Dept 2016]; CPLR 2221[e]). The new facts arising from the court’s conduct at three hearings that post-date the filing of the prior recusal motion would not change the prior determination (CPLR 2221[e][2], [3]). No bias is demonstrated by the court’s comments upon learning of the grounds for the recusal motion and its conduct at oral argument on that motion and at the sanctions hearing, either standing alone or in combination with credibility rulings in the landlord-tenant litigation that gave rise to the instant legal malpractice action and that were cited in the prior recusal motion. The court was at times annoyed by plaintiffs’ counsel’s disrespectful attitude and by the grounds raised in the recusal motion, which plaintiffs never proved or adequately investigated. However, the record does not demonstrate that the court was so vexed that it could not be impartial (22 NYCRR 100.3[E][1]; see Liteky v United States, 510 US 540, 555-556 [1994]; Hass & Gottlieb v Sook Hi Lee, 55 AD3d 433, 434 [1st Dept 2008]; People v A.S. Goldmen, Inc., 9 AD3d 283, 285 [1st Dept 2004], lv denied 3 NY3d 703 [2004]). The court also acted within its discretion in ordering a sanctions hearing to ascertain whether the recusal motion was frivolous (see 22 NYCRR 130-1.1[a], [c]; see also 22 NYCRR 130-1.1[a][b]).

Plaintiffs’ claims are undermined by the fact that, while they argue that the court made biased rulings in the underlying landlord-tenant litigation, they never moved for recusal in that lawsuit, which lasted over a decade (see Glatzer v Bear, Stearns & Co., Inc., 95 AD3d 707 [1st Dept 2012]). Even after the same justice was assigned to the instant action, plaintiffs did not move for recusal until 10 months after the case commenced, and then only after the court, at oral argument on a motion to dismiss, questioned the viability of plaintiffs’ legal malpractice claim on collateral estoppel grounds.”

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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.