We discussed Gilbo v Horowitz  2018 NY Slip Op 31844(U)  July 31, 2018  Supreme Court, New York County  Docket Number: 158727/2017  Judge: Margaret A. Chan last week in the context of ripeness in a multiple -attorney setting.  Beyond whether the case is ripe against prior attorneys while the underlying case is pending, is the question of how to break out (or apportion) blame in a multi-attorney setting.  First, some of the facts from the car accident case:

“Plaintiff is an attorney and represents himself in this matter. In the underlying personal injury action, plaintiff suffered devastating injuries when he was struck by a motor vehicle driven by non·party Crandall Glasglow as he walked across Flatbush Avenue in Brooklyn, New York, on July 21, 2012. Plaintiff alleges that he suffered a traumatic brain injury, :fracture of the left humerus and the neck vertebrae, and a severed brachial plexus of the left arm, among other injuries (NYSCEF Doc. No. 1- Verified Complaint at 1J 11). Plaintiff spent nine weeks in a medically induced coma and seven months recuperating in the hospital (id at 1111 12·13).

On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement with defendant Mark L. Bodner, P.C. (Bodner) and simultaneously executed a Power of Attorney authorizing his mother to pursue a personal injury claim related to the accident on his behalf (id at 1J 18). Bodner negotiated asettlement with Glasglow’s insurer on September 21, 2012, for the purported limit of the policy- $25,000.00 (id at 1J 20). Bodner attempted to deliver the net proceeds of that settlement to Gilbo, but Gilbo refused it (id at 1J 28). Bodner later filed a Notice of Claim against the City of New York, which is stamped received on October 18, 2012 (NYSCEF Doc. No. 8- Notice of Claim).

For his claim against the City of New York, Gilbo contacted another attorney, non-party Sherwin Suss, who was then of counsel to defendant Dillon, Horowitz & Goldstein, LLP (DHG), in November 2012 (id at ~ 29). Plaintiff executed a retainer agreement with DHG on March 13, 2013 (NYSCEF Doc. No. 18-Retainer). Despite the retainer, plaintiff appeared self-represented at a GML §50h hearing held with the City of New York on October 16, 2013 (NYSCEF Doc. No. 7). DHG commenced
an action on plaintiffs behalf against the City of New York in Kings County Supreme Court under the Index no. 506293/2013 (the Kings County action). DHG characterized its retainer agreement as one to “investigate the viability of Plaintiffs potential cause of action against the City” (NYSCEF Doc. No. 30 – Dillon Aff at~ 13). DHG made a FOIL request, conducted a site visit with plaintiff, and timely filed the Kings County action to preserve plaintiffs claim against the City (id). In November 2014, Suss stopped working for DHG. Three years later, DHG moved to be relieved as counsel in the Kings County action, which was granted on December 1, 2017. Court records reflect that Gilbo represents himself in that Kings County action. ”

“DHG argues that the legal malpractice claim also fails because the complaint fails to articulate that its conduct was the “but for” cause of any alleged damages. It also argues that there are no damages as the Kings County action is pending. This court concurs on both arguments.

Recovery for legal malpractice requires proof of three elements: (1) attorney negligence; (2) the negligence was the ‘proximate cause’ of the actual loss sustained; and (3) quantifiable damages (Cosmetics Plus Group, Ltd v Traub, 105 AD3d 134, 960 NYS2d 388 [1st Dept 2013]). There is no dispute that the Kings County action remains pending. As such, no adverse decision exists that would suggest that “but for” defendants’ alleged negligence, plaintiff would have had a more favorable outcome. Plaintiff, at this juncture, has not sustained any actual damages attributable to the alleged malpractice; plaintiffs claim is not ripe. Consequently, his claim for legal malpractice is dismissed with leave to replead (see Flintlock Const. Services, LLP v Rubin, Fiorella & Friedman LLP, 110 AD3d 426, 427 [1st Dept 2013]; Parametric Capital Mgt., LLC v Lacher, 15 AD3d 301, 302 [1st Dept 2005]; Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [1st Dept 2002]). Plaintiff withdraws his claim for specific performance (second cause of action) in his opposition (NYCSEF Doc No. 43 – Plaintiffs Opposition 11 17). In any event, that cause of action is not cognizable. A judge of the Kings County Supreme Court permitted DHG to be relieved in that action. Thus, this court could not make an award of specific performance in contravention of another court’s determination to relieve DHG. Plaintiffs cause of action for specific performance is permitted to be
withdrawn. “

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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.