Castlewood Apparel Corp. v Davidoff Hutcher & Citron LLP  2018 NY Slip Op 30717(U)
April 23, 2018 Supreme Court, New York County  Docket Number: 150167/2017  Judge: Shlomo S. Hagler is a case which displays an unusual degree of latitude in denying a 3211 motion to dismiss.  We have written that these motions seem to get a greater degree of attention, and consequently a higher bar to plaintiffs in legal malpractice settings.  This case approaches what we believe is the norm across the legal world.

“Plaintiffs legal malpractice claim is based on the allegation that defendant should have informed it of the need to file Uniform Commercial Code financing statements (“UCC-1 Financing Statements”) in order to secure its interest in the consigned goods. The parties dispute whether DHC was retained solely to negotiate the License Agreement, or to also represent plaintiff with respect to the  subsequent consignment transaction with Sports Authority (Klein Affidavit, ii 3; Sutton Affidavit, dated 4110/17[the “Sutton Affidavit”]). It is undisputed that plaintiff never signed a retainer agreement with DHC (Klein Affidavit,  12; Sutton Affidavit,  14; Tr Oral Argument, 6/26117 at 4). Rather, by email dated May 1, 2014, from Sutton to Klein, Sutton requested that Klein review an attached proposed license agreement with Prince. Said email stated, “Charles-we are moving forward with the Prince license. Can you start to look at the.attached agreement as we will need to move quickly on this” (KleinAffidavit, Exhibit “3”). In opposition, Sutton, avers that a draft letter agreement sent by Klein to Sutton on June 3, 2014, outlining the terms of a consignment transacti<?n with Sports Authority regarding Prince apparel, is proof that defendant’s representation of plaintiff covered advice to plaintiff as a consignor (the “Letter Agreement”) (Sutton Affidavit, Exhibits “A”, “B”; Id., iiii 3-9). Defendant presents an email, dated June 2, 2014, from Sutton to Klein which sets forth the terms of an agreement with Sports Authority, and requests that Klein “put together a very short and brief agreement that_! can present. to them” (Klein Reply Affidavit, Exhibit “A”). Sutton avers that he and Klein also had discussions at the time regarding the proposed consignment deal (Sutton Affidavit, iiii 7–9). Klein attests, however, that thereafter he was never asked to take further action with respect to the Letter Agreement and was not aware whether plaintiff forwarded it to Sports Authority (Klein Reply Affidavit, ii 18). As plaintiffs counsel admitted during argument, the Letter Agreement was never signed (Tr of Oral Argument, 6/26117 at 21:13-22:8). ”

“Here, the complaint and the evidentiary material submitted by plaintiff, is sufficient to
state a cause of action for purposes.ofthis pre-discovery CPLR 321 l(a)(7) motion. The
Complaint alleges that defendant’s negligent conduct in failing to advise plaintiff of the need to
file UCC-1 Financing Statements caused plaintiff to suffer damages. The Sutton Affidavit
submitted by plaintiff in opposition, avers that several discussions took place between the parties
regarding the eventual consignment deal with Sports Authority, and it is undisputed that
defendant drafted the proposed Letter Agreement between plaintiffand the Sports Authority
(Sutton Affidavit, ‘iii! 3-8; Klein Reply Affidavit,iJ’i! 17-18). Said Letter Agreement drafted by
Klein specifically addresses a consignment deal between plaintiff and Sports Authority (Sutton
Affidavit, Exhibit “B”). “

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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.