In the end, it only matters that the law firm was given notice of the claims. D’Angelo v Kujawski   2018 NY Slip Op 05750  Decided on August 15, 2018  Appellate Division, Second Department stands for the proposition that once the law firm had notice of the claims, then substitution of the proper party as plaintiff did not prejudice the law firm.

“In November 2011, the Surrogate’s Court issued letters of limited administration to the plaintiff for the decedent’s estate. Thereafter, the VA denied the plaintiff’s claim submitted by K & K. Subsequently, by letter dated December 20, 2013, the defendant Mark C. Kujawski, on behalf of K & K, informed the plaintiff that K & K had been unable to retain a suitable medical expert and, as a result, would no longer continue to represent her in the case. Thereafter, the plaintiff, pro se, commenced an action in the United States District Court for the Eastern District of New York (hereinafter the District Court) against the United States, inter alia, to recover damages for medical malpractice and wrongful death. An amended complaint was thereafter filed by counsel. The District Court dismissed the federal action, finding that the claims set forth in the amended complaint had not been presented to the VA in the notice of claim.

Thereafter, by summons and complaint dated and filed December 15, 2016, the plaintiff commenced this action to recover damages for legal malpractice against Kujawski, K & K (hereinafter together the appellants), and the other attorney who was engaged pursuant to the retainer agreement. The caption did not state that the plaintiff was suing in her capacity as the administrator of the decedent’s estate. However, the complaint alleged that the plaintiff had been appointed administrator of the decedent’s estate and detailed the history of the appellants’ engagement to pursue a claim against the VA related to the decedent’s death, and the eventual dismissal of the federal action by the District Court. The appellants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the basis that the plaintiff, in her individual capacity, did not have a viable claim against them since the plaintiff engaged K & K in her capacity as the administrator of the decedent’s estate. The plaintiff cross-moved for leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity.

The Supreme Court, inter alia, granted the plaintiff’s cross motion for leave to amend the complaint and denied, as academic, the appellants’ motion to dismiss the complaint insofar as asserted against them.”

“The Supreme Court providently exercised its discretion in granting the plaintiff leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity. The proposed amendment, which only sought to shift the causes of action from the plaintiff in her individual capacity to herself in her representative capacity, was proper since the allegations set forth in the complaint gave the appellants notice of the legal malpractice causes of action being asserted against them in the amended complaint (see United Fairness, Inc. v Town of Woodbury, 113 AD3d at 755; Matter of Highland Hall Apts., LLC v New York State Div. of Hous. & Community Renewal, 66 AD3d at 682; JCD Farms v Juul-Nielsen, 300 AD2d at 446; Plotkin v New York City Tr. Auth., 220 AD2d at 654). Moreover, the appellants’ contention that they would be prejudiced by the amendment because the applicable statute of limitations had expired by the time the plaintiff sought leave to amend the complaint is without merit, since the original complaint was timely filed and gave the appellants notice of the transactions and occurrences pleaded in the amended complaint (see CPLR 203[f]; see also George v Mt. Sinai Hosp., 47 NY2d 170, 178; Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 202).

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for leave to amend the complaint and, in light of the amendment, properly denied, as academic, the appellants’ motion to dismiss the complaint.”

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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 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.