Gross v Aronson, Mayefsky & Sloan, LLP    2018 NY Slip Op 31590(U)  July 10, 2018
Supreme Court, New York County  Docket Number: 153274/2017  Judge: Anthony Cannataro demonstrates how hard it is to link up bad outcomes with a cognizable legal malpractice claim.  It’s a matrimonial case in which the father guaranteed legal fee payments for his daughter, involved in a divorce with her husband.  Supreme Court found that the father had an insufficient relationship with the law firm to be able to sue, that many of the claims were too speculative and that in general, there was not a lot left on the bone here.

“Plaintiff Jacqueline Toboroff Gross (Jacqueline) entered into a written retainer agreement with defendant Aronson, Mayefsky & Sloan, LLP (AMS) on September 18, 2013. The retainer provided that AMS would seek a settlement agreement with Jacqueline’s husband, Fred Gross (husband), or if that was not possible, represent Jacqueline in subsequent matrimonial proceedings. Jacqueline’s father, Leonard Toboroff (Leonard), served as guarantor on this agreement. When a settlement was not reached, a divorce action was commenced on November 7, 2013. At that time, Jacqueline and her husband’s marital assets included $3,322,000 held in three investment accounts: Shwab Account ending in 6185; Shwab Account ending in 2091; Capital One Account ending in 8194 (together, the Marital Accounts).”

“On its motion to dismiss, AMS argues that it zealously represented Jacqueline throughout three years of litigation, any delay and/or additional expenses were the result of the husband’s recalcitrance, and the instant action is merely an attempt to avoid payment of legal fees.
Defendant  asserts that as Leonard was a guarantor rather than AMS’ client, he has no privity of
contract, and therefore his malpractice claims should be dismissed. Defendant further argues
that Jacqueline’s malpractice claims should be dismissed as she has failed to allege facts to support them and documentary evidence precludes a finding of negligence, proximate cause, or damages on the part of AMS. Finally, defendant asserts that the Judiciary Law§ 487 claim fails as no extreme or egregious deceit has been alleged, documentary evidence shows that any prolonging of the action was due to the husband’s actions, and any remedy could only be sought in the underlying matrimonial action.

In response, plaintiff claims that AMS ran up a large legal bill while failing and neglecting to protect Jacqueline’s marital assets and equitable distribution rights. Plaintiffs argue that Leonard signed a written guaranty at AMS’ specific request and insistence, creating privity. Plaintiffs assert that defendant’s malpractice was a result of its failure to timely notify financial institutions of the pending matrimonial action and the December TRO which directly caused plaintiff to permanently lose her equitable distributive award. Plaintiffs also argue that the  evidence defendant relied on is legally insufficient to be considered documentary evidence.”

“In this case, Leonard entered into a guarantee agreement with AMS for payment of legal fees associated with Jacqueline’s divorce action and communicated with AMS about Jacqueline’s  ongoing case. No facts are alleged that would tend to show that AMS was aware Leonard was relying on their statements or did so for a specific purpose. However, a third party may maintain a malpractice claim against an attorney without privity if the existence of fraud, collusion, malicious acts or other special circumstances is established (Estate of Schneider v Finmann, 15 NY3d 306, 308-309 [2010]).

Here, the only allegations of fraud, collusion, malicious acts, or other circumstances relate to
plaintiffs Judiciary Law § 487 claim, which, as discussed below, is inapposite here. Thus, the
malpractice claims on Leonard’s behalf must be dismissed.”

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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.