Marder’s Antique Jewelry, Inc. v Bolton  2018 NY Slip Op 31828(U)  July 31, 2018
Supreme Court, New York County  Docket Number: 152926/2012  Judge: Arlene P. Bluth is an excellent example of how a “legal malpractice” case becomes an unsuccessful legal malpractice case.  Practitioners and the general public are quick (and often accurate) in pointing out a departure from good practice.  A common mistake is to stop there and declare it “legal malpractice.”  It is not yet legal malpractice without the additional three elements:  proximity, “but for” causation and ascertainable damages. Hence, mistakes are not enough.

“This legal malpractice action arises from an underlying case (“Underlying Case”)
regarding Plaintiffs attempt to recover jewelry or its monetary value from Plaintiffs cousin
Toby Fischer (“Ms. Fischer”) and the Provident Loan Society of New York (“Provident”)
(NYSCEF Doc. No. 32 at 2). Plaintiff alleges that Defendant committed legal malpractice by,
inter a/ia, failing to prevent Provident from selling the jewelry. ”

“Plaintiff has been in the jewelry business for several decades. In 2004, Plaintiff took 39
items of antique jewelry from its inventory and lent them to Ms. Fischer so she could photograph
them in connection with her clothing business (NYSCEF Doc. No. 2 at 2). Instead ofretuming
all the jewelry, Ms. Fischer pawned 38 items to Provident for a loan of $16,400 (NYSCEF Doc.
No. 36 at 10).
Marder consulted with Defendant and alleges that Defendant told him that he could get
the jewelry back by paying back Ms. Fischer’s loans to Provident or he could pay Defendant
legal fees to get the jewelry back. Plaintiff chose to pay Defendant rather than paying Provident his cousin’s debt (or a negotiated lesser amount) and in November 2005, Plaintiff retained
Defendant to sue Ms. Fischer and Provident. The Underlying Complaint seeks to recover the
jewelry (replevin) or its monetary value (conversion). A preliminary injunction restraining the
sale of the jewelry was obtained. ”

“Even though Plaintiff was unable to recover the jewelry in the Underlying Case, he still
would have been able to recover the full monetary value of the jewelry, which would have been
sufficient as Plaintiff did not claim that the jewelry was sentimental or otherwise worth more
than just its monetary value (Ross v. Louise Wise Services. inc., 8 NY3d 478, 489, 836 NYS2d
509, 515-516 (2007] [holding that “compensatory damages are intended to have the wrongdoer
make the victim whole – to assure that the victim receive fair and just compensation
commensurate with the injury sustained”]). Marder is an expert at valuing antique jewelry and
could have established the value of the jewelry without inspecting the jewelry itself 1 Because
Plaintiff did not need the actual jewelry to assess its value, he was not prejudiced from the sale of
the jewelry. lfthe Underlying Case had gone to trial, then Plaintiff would have been able to
obtain a money judgment for the full value of the jewelry, regardless of whether the jewelry was
sold; this means that Plaintiff did not suffer ascertainable and actual damages, which is the crux
of a legal malpractice claim.
Any claim by Plaintiff that he desired to repossess the jewelry more than he desired to
obtain its monetary value is inconsistent with his actions. Plaintiff originally made the decision
not to pay Ms. Fischer’s loans to recover the jewelry and instead chose to pay a lawyer and commence the Underlying Case. While Marder was understandably reluctant to pay his cousin’s
debt to recover his own jewelry, pursuing legal action instead of promptly recovering the jewelry
was a business decision made by Plaintiff, not Defendant. Likewise, Plaintiffs decision to settle
instead of going to trial to prove the value of the jewelry and obtain a judgment therefor was a
business decision by Plaintiff. Plaintiffs business decisions do not constitute Defendant’s legal
malpractice. “

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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.