Some of the most unusual and unstable law arises from chance litigation between pro-se plaintiffs and professional defendants. Borges v Placeres  2018 NY Slip Op 28224  Decided on June 27, 2018  Civil Court Of The City Of New York, New York County  Ramseur, J. is a wonderful example.  Immigration plaintiff sues immigration attorney for his unnecessary deportation and wins a $ 900,000 verdict for “emotional pain and suffering” which is completely wrong in a legal malpractice setting.  There is plenty of Court of Appeals and Appellate Division law which completely outlaws such an award.  Nevertheless, the attorney-defendant failed to make these arguments when he had the chance.  So, the case followed into Bankruptcy Court and from there into utter confusion.

“Plaintiff/judgment creditor Jose Borges retained Defendant/judgment debtor Alfred Placeres, an immigration attorney, for immigration proceedings. During the proceedings, Defendant instructed Plaintiff not to appear in immigration court on a specific date. Upon Plaintiff’s absence, an immigration court judge issued an in absentia deportation order which resulted in Plaintiff’s 14-month detention. Plaintiff consequently filed a legal malpractice action arguing, in sum and substance, that Defendant’s instruction was negligent (Borges v Placeres, 43 Misc 3d 61, 63 [App Term 2014], affd, 123 AD3d 611 [1st Dept 2014]). The jury found unanimously in favor of Plaintiff that Defendant committed malpractice and a judgment was entered of $1,250,206.37—-including, as relevant here, damages for pain and suffering in the amount of $900,000.00.

Defendant subsequently engaged in several unsuccessful appeals, arguing, in relevant part, for vacatur of the verdict because damages for pain and suffering are unrecoverable for legal malpractice (43 Misc 3d 61 [App Term 1st Dept 2014]; 123 AD3d 611 [1st Dept 2014]; 2015 NY Slip Op 77781[U] [1st Dept 2015]). The Appellate Term held that

With respect to damages, it need be emphasized that our review of the jury’s award may not be based on the recent decisional law relied upon by defendant—precedent holding that an award of nonpecuniary damages is generally unavailable to a plaintiff in an action for attorney malpractice. Notably, defendant did not raise an objection to the jury charge as given, instructing the jury that they could award plaintiff damages for pain and suffering, or to the corresponding question on the verdict sheet, and, indeed, defendant raised no objection at trial to the introduction of evidence regarding the mental and emotional disturbance caused by plaintiff’s detention (43 Misc 3d at 64).

After Defendant exhausted his appeals, on January 22, 2015, Plaintiff served upon Defendant an information subpoena pursuant to CPLR § 5224(a)(3) (Pl Exh A [the “Subpoena”]). Plaintiff contends that Defendant never responded to the Subpoena and, in any [*2]event, should update any response to include new assets because “Defendant’s lot in life seems to have improved” (Pl Reply at 2).[FN1]Defendant responds that he has provided full disclosure but, in any event, is willing to supplement that disclosure (Def Aff ¶¶ 11-12, citing Def Exh F).[FN2] “

“The parties agree that a cause of action for legal malpractice is generally assignable (NY [*5]Jur 2d Assignments § 16; Chang v Chang, 226 AD2d 316 [1st Dept 1996]; Greevy by Greevy v Becker, Isserlis, Sullivan & Kurtz, 240 AD2d 539, 541 [2d Dept 1997]; Molina v Faust Goetz Schenker & Blee, LLP, 230 F Supp 3d 279, 285 [SDNY 2017]; General Obligations Law § 13-101; Def Memo of Law at 12). Where the parties disagree, however, is whether this Court can compel the assignment of a prospective cause of action to satisfy a debt.

Defendant fails to provide a credible argument that a debtor cannot be compelled to assign a prospective cause of action to satisfy a debt (see Def Memo of Law at 11). A money judgment may be enforced against any debt, including “a cause of action which could be assigned or transferred accruing within or without the state” (CPLR 5225[a]; ABKCO Indus., Inc. v Apple Films, Inc., 39 NY2d 670, 673 [1976]). CPLR 5225(b) provides that

Upon motion of the judgment creditor, upon notice to the judgment debtor, where it is shown that the judgment debtor is in possession or custody of money or other personal property in which he has an interest, the court shall order that the judgment debtor pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff (emphasis added).

CPLR § 5201(b) further defines the property subject to turnover: “a money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested, unless it is exempt from application to the satisfaction of the judgment” (emphasis added). By its explicit terms, and reading CPLR 5225(b) and CPLR § 5201(b) together, CPLR § 5201(b) includes future and/or unvested rights, including, as relevant here, a legal malpractice claim which has not yet been filed, and which Defendant has made clear he has no intention to file.

The preceding statutes and case law codify the principle that compels “the ultimate payment of a debt by one who in equity and good conscience, should pay it” (see CPLR § 5240 [“The court may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure”]; Natl. Sur. Co. v Natl. City Bank of Brooklyn, 184 AD 771, 773—74 [1st Dept 1918] [citing the principle that “compel[s] the creditor to assign a cause of action which he had against a third person to sureties who have paid the debt of their principal”]; see also De Long Corp. v Lucas, 176 F Supp 104, 127 [SDNY 1959], affd, 278 F2d 804 [2d Cir 1960] [finding that an assignment of future improvements to a patent which the inventor may thereafter produce is effective so long as the language of the contract [is] very plain and evidence unmistakably that such an agreement was in the mind of the inventor”]; see also Cohen v Hughes, 38 NYS2d 874, 877 [Sup Ct NY County 1942] [denying motion to dismiss cause of action seeking to compel assignment of interest in limited partnership], affd, 266 AD 658 [1st Dept 1943], affd, 291 NY 698 [1943]). Several sister jurisdictions have also recognized such a remedy (see, e.g., Cahaly v Benistar Prop. Exch. Tr. Co., Inc., 68 Mass App Ct 668, 678—79, 864 NE2d 548, 558—59 [Mass App Ct 2007], affd, 451 Mass 343, 885 NE2d 800 [2008] [affirming trial judge’s assignment of cause of action to judgment creditor to satisfy judgment]; Renger Mem. Hosp. v State, 674 SW2d 828, 830 [Tex App 1984]).

This conclusion is further buttressed by CPLR 5227, which provides for a special proceeding for a determination of whether or not a prospective garnishee is indebted to the [*6]judgment debtor, and seeks to effectuate Article 52 enforcement, which “should be liberally construed to help reach any property interest that CPLR 5201 has declared to be available” (Reilly, CPLR Commentary C5227:1). A CPLR 5227 proceeding will

be akin to a direct action by the judgment debtor against the garnishee, but with the judgment creditor standing in the judgment debtor’s position and prosecuting the judgment debtor’s claim. If the proceeding adjudicates that the garnishee does owe a debt to the judgment debtor, the court will render a judgment to that effect in the special proceeding and further direct that the garnishee pay the debt—for a “debt” is what the cause of action now becomes under the adjudication—to the judgment creditor. Or the court may simply render a judgment in favor of the judgment creditor directly against the garnishee (Reilly, CPLR Commentary, C5201:2; see also C5227:1).

Rather than objecting to the availability of assignment as a remedy, Defendant argues, under various theories, that the cause of action cannot be assigned because the issue has already been decided, or that the claim cannot be assigned because it will eventually fail.”

 

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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.