Surely the longest running Judiciary Law§ 487 case known to man, Melcher v Greenberg Traurig LLP  2018 NY Slip Op 06310  Decided on September 27, 2018  Appellate Division, First Department has been modified and sent back to Supreme Court for trial.  Previously it had been severely clipped and stripped of most of the damage claims by Supreme Court.

“In the present action, Melcher seeks to recover treble damages against Corwin on the theory that Corwin, by propounding the allegedly fabricated 1998 writing on behalf of Fradd and AMFM in the Apollo action, engaged in “deceit or collusion, or consent[ed] to . . . deceit or collusion, with intent or deceive the court or any party” (Judiciary Law § 487[1]). Before us is Melcher’s appeal from, inter alia, Supreme Court’s order granting Corwin’s motion in limine to the extent of excluding the testimony of two of Melcher’s expert witnesses, Jonathan Lupkin and James Lynch. We note that, contrary to Corwin’s contention, the order determining the motion in limine is appealable because it involves the merits of the controversy and affects a substantial right (see Credit Suisse First Boston v Utrecht-America Fin. Co., 84 AD3d 579, 580 [1st Dept 2011]).

Initially, we find that the court’s preclusion of Lynch’s testimony should be affirmed. Melcher proposes to call Lynch to testify to the calculation of the difference in value between the judgment he obtained against the insolvent AMFM and the lesser amount he received in his subsequent settlement with Fradd. It is, however, entirely a matter of speculation whether the Apollo action would have been resolved while AMFM was still solvent had the 1998 writing not been propounded. Accordingly, that theory of damages, in support of which Melcher proposes to call Lynch to testify, does not afford Melcher a proper basis for recovery (see Feldman v Jasne, 294 AD2d 307 [1st Dept 2002]). Since Lynch’s testimony is not offered for any other purpose, it was properly precluded.

Melcher’s other expert witness, Lupkin, prepared a report calculating the attorneys’ fees and other costs Melcher incurred in litigating the Apollo action (excluding certain costs concededly not related to the 1998 writing) beginning from 19 different points in time during the litigation [FN2]. According to Lupkin, the factfinder in this case, based on whichever of these 19 points in time it determines to have been the point at which Corwin learned that the 1998 writing was fabricated, should award Melcher the corresponding damages figure as the amount of the excess legal costs he incurred by reason of Corwin’s alleged deceit. Although, for the reasons discussed below, the damages calculation in Lupkin’s report cannot be endorsed (even assuming that Melcher proves that Corwin violated Judiciary Law § 487), we conclude, substituting our [*3]discretion for that of Supreme Court, that Melcher should not be precluded from calling Lupkin to testify at trial.”

“In view of the foregoing, the potential damages figures proposed in Lupkin’s report — each of which assumes that Melcher may recover all of his costs in litigating the Apollo action (excluding only the costs he would have incurred in calculating damages even if a default judgment had been entered in his favor) from the time Corwin learned that the 1998 writing was fabricated, through the end of the case — do not constitute proper bases for recovery. Nonetheless, we are cognizant of the “evident intent [of Judiciary Law § 487] to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function” (Amalfitano, 12 NY3d at 14; see also Specialized Indus. Servs. Corp. v Carter, 99 AD3d 692, 693 [2d Dept 2012] [noting that the statutory remedy is “designed . . . to deter” attorneys from “betraying” this obligation]). Accordingly, we exercise our discretion to modify Supreme Court’s order to permit Melcher to call Lupkin to testify as an expert witness on damages at trial, with the proviso that his testimony be limited to the assessment of the excess legal costs that Melcher was required to incur, during the period beginning February 17, 2004, [*4]and ending May 11, 2009, as the proximate result of any violation of Judiciary Law § 487 by Corwin that the factfinder may find to have occurred, as discussed above.”



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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.