There are additional hurdles for legal malpractice cases not found in other spheres of the law.  Rodriguez v Dean    2018 NY Slip Op 30642(U)  April 10, 2018  Supreme Court, New York County Docket Number: 805280/16  Judge: Sherry Klein Heitler presents a new wrinkle we have not seen before.  There are more than a few legal malpractice cases arising from negligently handled medical malpractice cases.  There is a requirement in medical malpractice complaints that Plaintiff file a Certificate of Merit pursuant to CPLR 3012-a(1).  There is an extensive body of law concerning what happens if the Certificate is not timely filed.  It can (generally) be filed nunc-pro-tunc.  Here, Supreme Court required the legal malpractice attorney to file a Certificate, and then dismissed for failure to file it.

“This is a legal malpractice action alleging that defendants failed to timely commence a medical malpractice action on plaintiffs’ behalf. The facts of this case are set forth in detail in the court’s November 27, 2017order. 1 Briefly, plaintiff Rosalia Rodriguez allegedly underwent corrective surgery at NYU Hospital in New York on February 12, 2012 which allegedly resulted in injuries to her leg. Ms. Rodriguez alleges that she then signed a retainer agreement with the law firm of Dell & Dean, PLLC to prosecute a medical malpractice action on her behalf. This alleged retainer has not been produced to the court. ”

“Moreover, plaintiffs do not submit any evidence to counter defendants’ assertion that there
is no medical basis for Ms. Rodriguez’ underlying medical malpractice claim. To be sure,.the
certificate of merit provided on the prior motion indicates that plaintiffs’ counsel consulted with a
physician who was not identified. For this reason it was the court’s belief that plaintiffs were in
possession of at least some medical information to support a cognizable medical malpractice claim.”

“CPLR 3012-a was “designed to warn lawyers away from bringing [medical malpractice]
actions at all unless they have consulted appropriate experts in the field to ascertain that the claim
has at least arguable merit.” Connors, Practice Commentaries, McKinneys Cons Laws of NY, Book
7B, C3012-a:l, at 141. Given the facts and circumstances of this case, and despite affording
plaintiffs several opportunities to do so over the course of several years, there is no evidence to
justify the continuation of this action. At this point, defendants are being prejudiced, and it would
be unjust to allow this case to proceed any further. See Horn v Boyle, 260 AD2d 76 (3d Dept
1999); see also Grad v Hajliger, 68 AD3d 543, 544 (1st Dept 2009); Deleon v Sonin & Genis, 303
AD2d 291, 292 (1st Dept 2003); George v St. John’s Riverside Hosp., 162 AD2d 140, 140 (1st Dept
1990); Kolb v Strogh, 15 8 AD2d 15, 22 (2d Dept 1990). “

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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.