Litigation is alternatively a blood sport or the sport of kings.  It takes a lot of money and sometimes tempers flare.  In Englese v Sladkus  2018 NY Slip Op 50625(U) Decided on April 25, 2018
Supreme Court, New York County St. George, J.  we see what happens when a litigant speaks candidly without any filtering.

“Steven D. Sladkus, an attorney, brings this defamation action against Melanie Englese a/k/a Melanie Sisskind, his former client. Ms. Englese and her husband initiated a legal malpractice action against Mr. Sladkus and his former law firm by summons and notice on June 4, 2015 and followed with a complaint on September 27, 2015. Their complaint asserts that Mr. Sladkus and his former firm committed malpractice when they 1) allowed the statute of limitations to expire as to two allegedly appropriate defendants, and 2) due to this and other alleged malpractice, forced Ms. Englese and her husband to accept a poor settlement. The settlement Mr. Sladkus negotiated for Englese and her husband was finalized on June 5, 2012. The legal malpractice action, Englese v Sladkus (Sup. Ct., NY County, St. George, J., index No. 101006/2015 [Englese]), is also before this Court and is the subject of a pre-answer motion to dismiss, which this Court addresses in a separate decision. Additional details about the Englese case are contained in the Court’s interim order on the pre-answer motion.

In the instant case, Mr. Sladkus asserts that around August 22, 2015 — more than two months after the summons with notice was filed in Englese but a little more than a month before the Englese complaint was filed — Ms. Englese defamed him to William Suk, one of his key business relations, stating that Mr. Sladkus “(i) is a lawyer who ‘gives poor advice’; (ii) is ‘a shitty lawyer’; (iii) caused them to lose ‘a ton of money in their settlement with the sponsor; (iv) ‘took advantage of [her and her husband] because [her own husband] was not effectual in the negotiations and because [she] was in [her] final term of pregnancy’; and (v) ‘theatened [her and [*2]her husband] into settling’ the litigation against the sponsor” (Complaint, ¶ 29). Mr. Sladkus learned of this alleged defamation when Mr. Suk contacted him and informed him of such. The complaint also asserts, on information and belief, that Ms. Englese has maligned him to other individuals as well.”

“”Defamation is the making of a false statement about a person that tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him or her in the minds of right-thinking persons, and to deprive him or her of their friendly intercourse in society” (Frechtman v Gutterman, 115 AD3d 102, 104 [1st Dept 2014] [citations and internal quotation marks omitted]). Opinion, on the other hand, is not actionable (see Parks v Steinbrenner, 131 AD2d 60, 62 [1st Dept 1987]). As stated earlier, Mr. Sladkus has cited five alleged defamatory comments that Ms. Englese allegedly made about him: 1) he gives poor legal advice, 2) he is a shitty lawyer, 3) he caused Ms. Englese and her husband to lose a lot of money in their settlement, 4) her husband was not effectual in the settlement negotiations and Ms. Englese was especially vulnerable due to the advanced stage of her pregnancy, and Mr. Sladkus [*4]took advantage of this, and 5) Mr. Sladkus threatened her and her husband into settling the case.

Although Ms. Englese argues to the contrary, the Court finds that the allegations of defamation are not too vague to support a claim. As Mr. Sladkus points out, the complaint sets forth the approximate date of the occurrence, the place of the occurrence, and the words Ms. Englese allegedly used. Ms. Englese’s arguments in support of her motion to dismiss, including that not all the words were in quotes and that the quotes contain brackets are unpersuasive.

Next, the Court concludes that the first, second and fourth of these five statements should be dismissed as opinion. Ms. Englese’s statements that Mr. Sladkus is a bad lawyer and gives bad advice are clearly opinion and, as such, are not actionable. The fourth statement listed above, as described in the complaint, is opinion because it focuses on the facts that she was in the last term of her pregnancy and that her husband was ineffectual. The statements that Mr. Sladkus caused Ms. Englese and her husband to lose a “ton of money” is set forth as fact and speaks to Mr. Sladkus’ competence in his profession, and the statement that Mr. Sladkus threatened them into settling also is a factual allegation. Because the comments, in their entirety and in their proper context, essentially accuse him of incompetence in his profession, he sets forth a claim for defamation per se (Cf. Carney v Memorial Hospital and Nursing Home of Greene County, 64 NY2d 770, 772 [1985]). Moreover, as this constitutes defamation per se, the complaint does not have to assert special damages as to this claim (see Nolan v State, 158 AD3d 186, 191 [1st Dept 2018]).”

 

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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.