It’s rare, very rare, to come across what the Court thinks might be a novel question of law, especially in a legal malpractice setting.  Generally, the triumvirate of claims found in a legal malpractice setting are legal malpractice, breach of contract and breach of fiduciary duty,  In FTI Consulting, Inc. v CT Miami, LLC  2018 NY Slip Op 31923(U)  August 6, 2018  Supreme Court, New York County  Docket Number: 654062/2016  Judge: Melissa A. Crane we see a new participant:  ordinary negligence.  To date, courts have generally relegated any negligence claim against an attorney to “legal malpractice” rather than “negligence.”

“The following facts are from the third-party complaint (TPC). Akerman, a law firm, represented CT Miami in connection with a certain Florida litigation (the Florida litigation) (TPC, ¶2-3, 5). While that matter was ongoing, Akerman recommended that CT Miami hire an e-discovery company, plaintiff FT! Consulting, Inc. (FTI) to provide support services (TPC, ¶8-9). CT Miami hired FTI in September 2013 (id., i!7). CT Miami claims at that time the estimated cost of FTl’s services the parties agreed to was $4,900 (id., iii! 8-10). CT Miami also claims that “Akerman explicitly confirmed” that it was only obligated to pay the $4,900 estimate amount (id.,¶ 15). ”

“Akerman first argues that Florida’s two-year statute oflimitations for legal malpractice (Fla. Stat. Ann. § 95.11 [4]) bars all five causes of action applicable in this matter pursuant to New York’s “borrowing statute” (CPLR § 202). This argument relies upon plaintiffs claims as all sounding in legal malpractice. However, CT Miami asserts no claim for malpractice and takes no issue with the legal services Akerman rendered in the Florida litigation. Instead, CT Miami alleges a claim for simple negligence, separate and apart from Akerman’s legal services.

New York courts have previously recognized the distinction between professional malpractice and ordinary negligence in the medical malpractice context (e.g., Yaniv v Taub, 256 AD2d 273, 274 [1st Dept 1998] [“failure to communicate significant medical findings to a patient or his treating physician is not malpractice but ordinary negligence”]; McKinney v Bellevue Hosp., 183 AD2d 563, 565 [pt Dept 1992] [permitting claim of simple negligence where a malpractice action barred]). “The critical question in determining whether an action sounds in medical malpractice or simple negligence is the nature of the duty to the plaintiff which the defendant is alleged to have breached” (Stanley v Lebetkin, 123 AD2d 854, 854 [2d Dept 1986] [citations omitted]). A claim for simple negligence is “restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts on common knowledge,” whereas a claim for malpractice is one that typically requires expert testimony or other specialized knowledge (Hale v State of New York, 53 AD2d 1025, 1025 [4th Dept 1976]). In other words, “[t]he distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter or medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603 [internal quotation marks and citation omitted]).

Although this may be an issue of first impression for New York courts in the context of legal malpractice, the same logic applies to the distinction between simple negligence and legal malpractice as with respect to medical malpractice. An example typically used to demonstrate the distinction in the medical context is that of a nurse spilling hot water on a patient. The fact that a medical professional causes the injury does not tum this act of simple negligence into a medical malpractice.

Similarly, the mere fact that a negligence claim is asserted against an attorney, without more,
does not render it a claim for legal malpractice. Here, the act complained off – the hiring of a
company that allegedly overcharged for unauthorized work – does not require any special legal
skill and can be “assessed on the basis of the common everyday experience of the trier of the
facts” (id. at 603).

The cases cited by Akerman in support of its legal malpractice argument are distinguishable. Calcutti v SBU, Inc., a Southern District of New York case cited by Akerman for the principle that, “[l]egal malpractice, as opposed to ordinary negligence, is the appropriate cause of action to bring against an attorney who allegedly performed his/her professional duties negligently,” involved a complaint that asserted both a malpractice and a negligence claim against an attorney (224 F Supp 2d 691, 700 [SD NY 2002]). Notably, Calcutti permitted both claims to go forward (id. at 701). Santiago v 370 Broadway Assoc., which Akerman cites for the general proposition that, “[ m] al practice is the negligence of a professional toward a person for whom a service is rendered” actually holds only that, “an insurance broker is not capable of committing ‘professional malpractice”‘ (264 AD2d 624, 624-25 [1st Dept 1999], affd as modified, 96 NY2d 765 [2001]). The general proposition cited in that decision does not turn every claim against an attorney into legal malpractice any more than it would tum every claim against a doctor into medical malpractice.

That CT Miami is bringing this action against its former law firm is insufficient, on its own, to tum this action into one for legal malpractice. Accordingly, Akerman does not get the benefit of the shorter statute of limitations period applicable to malpractice claims and Florida’s longer four year statute of limitations applies to the claims (Fla. Stat. § 95.11 et seq.). Thus, the action is timely.”

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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.