A medical malpractice case is almost always a tragedy.  Someone has been unnecessarily hurt, someone has unnecessarily died.  How can it get worse?

Marinelli v Sullivan Papain Block McGrath &  Cannavo, P.C.  2018 NY Slip Op 31610(U)
July 10, 2018  Supreme Court, Kings County  Docket Number: 519958/2016  Judge: Marsha L. Steinhardt is one example of how the situation can get even worse.  A hurt mother, a dead infant and then a question of the results of an autopsy.

“On or about April 13, 2012, the law firm of Sullivan, Papain, Block, McGrath and Cannavo, P .C
(“SPBMC”) was retained by the Marinelli’s to prosecute said claims against the midwife and doctors involved in the delivery of Valentino Nicola. The New York Methodist Hospital was named as an additional defendant to the lawsuit. The action ran the usual course and, ultimately, appeared before the undersigned in the Medical Malpractice Trial Readiness Part. Conferences between the attorneys for plaintiffs and (medical) defendants occurred and the matter was resolved in the total amount of one million, two hundred thousand dollars ($1,200,000.00); one hundred thousand dollars ($100,000.00) thereof being allocated to the wrongful death of the infant. The New York Methodist Hospital did not participate in the settlement. Said matter has been deemed “disposed” by the Court.

On February 17, 2015 an action on behalf of Lily and Vito Marinelli, in their capacity as co-administrators of the Estate of Valentino Nicola Marinelli, and individually, against The New  York Methodist Hospital, sounding in loss of sepulcher, was filed by the above-named defendants in the Office of the Kings County Clerk. ”

“The gravamen of plaintiffs’ complaint is that by failing to pursue the return of deceased infant’s organs for burial, defendant breached a duty to plaintiffs that “constituted a deviation from proper representation,” i.e. legal malpractice. In particular, plaintiffs’ Fourth Cause of Action seeks  monetary damages for breach of contract, alleging that said contract was created at some point prior to plaintiffs’ retention of defendant Jaw firm (April 2012) to pursue their medical malpractice (personal injury/wrongful death) action. That at all times relevant ” … [T]he return of decedent’s organs for burial was of significantly greater importance to the plaintiffs than recovering monetary damages for the personal injuries and wrongful death.” That defendant agreed, in February 2012, to try to effectuate the return of the organs. And that by “doing nothing” until such time as the organs were disposed of by Methodist Hospital, renders it liable for breach of contract. That the consideration given by the Marinelli’s was the retention, by them, of the defendant to pursue their claims. ”

“Assuming, for the purpose of this discussion, that it was the intention of Mr. and Mrs. Marinelli to create a contract with defendant law firm, requiring it to pursue the return of decedent’s organs, it is this Court’s opinion that they did not fulfill their “portion of the deal” for at least two months. Based on the identical affidavits submitted by them in opposition to defendant’s motion, it is undisputed that they did not sign a retainer agreement until April. Thus, there was· no quid pro quo between the parties until, at minimum, the date the retainer agreement was signed. Plaintiffs’ allege that had defendant sought return of the organs in February or March of2012 “the organs could have been recovered and could have received a proper religious burial.” It is this Court’s opinion that no legal relationship existed between the parties in February or March of 2012 and that defendant  considered plaintiffs at that time to be, at most, potential clients to whom no actual duty was owed. At that point, no enforceable contract (written or oral) existed. “

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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.