Billiard Balls Mgt. LLC v Mintzer Sarowitz Zeris  Ledva & Meyers, LLP  2018 NY Slip Op 32019(U)  August 17, 2018  Supreme Court, New York County  Docket Number:  153477/2016   Judge: Carol R. Edmead is an interesting twist on the privity question.

“This is a legal malpractice action arising out of an automobile accident. Defendant Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP (Mintzer) briefly represented the plaintiff Billiard Balls Management (Billiard Balls) in an underlying action in Kings County, Gershman v Ahmad (index No. 18893/12) (the Gershman matter, or the underlying action), where the plaintiff Lizaveta Gershman (Gershman) alleged that Billiard Balls was liable under the Dram Shop Act.

Billiard Balls was insured at the time of the underlying accident by nonparty Capital Indemnity Corporation (Capital). Capital engaged Mintzer to represent Billiard Balls in the Gershman matter. Mintzer entered into two stipulations with counsel for Gershman, both of which extended Billiard Balls’ time to answer the complaint. However, Capital by letter dated December 28, 2012, denied coverage to Billiard Balls 1 and informed Mintzer that it would not be paying Billiard Balls’ legal bills. Mintzer, by letter dated January 25, 2013, informed Gershman’ s counsel that “we have been directed by the carrier not to interpose an Answer on behalf of Billiard Balls Management, LLC” (NYSCEF doc No. 62, ii 2).

On January 11, 2013, Billiard Balls’ time to answer Gershman’ s complaint expired. However, according to Aristotle Hatzigcorgiou (Hatzigcorgiou), a principal of Billiard Balls, Mintzer did not inform Billiard Balls about this deadline (Hatzigcorgiou aff, ii 9, NYSCEF doc No. 87). Nor did Mintzer move to be relieved as counsel. According to Billiard Balls, it did not learn of the deadline to answer until counsel for Gershman served a notice of motion, dated September 30, 2013, for a default judgment against Billiard Balls pursuant to CPLR 3215 (a) (b).

Only after it received the motion for a default against it did Billiard Balls retain thirdparty defendant Pillinger to defend against the motion (id., ii 1 O; see also NYSCEF doc Nos. 88 and 89 [emails between Billiard Balls and Pillinger exchanged in October 2013 ]). Pillinger opposed Gershmn’s motion and cross-moved to compel Gershman to accept Billiard Balls’ proposed answer. By an order dated May 7, 2014 (the May 2014 Order), the trial court in the underlying matter denied Gershman’s motion for a default and granted Billiard Balls’ motion to compel Gershman to accept its proposed answer. More than a year later, the Appellate Division, Second Department, reversed the May 2014 Order (Gershman v Ahmad, 131 AD3d 1104 [2d Dept 2015]). ”

“The salient fact related to Mintzer’s claim of legal malpractice against Pillinger is that Pillinger never represented Mintzer. Pillinger argues that the legal malpractice claim must be dismissed as it has no duty, except to clients, to practice law reasonably well. Indeed, the Appellate Division has held that “New York courts impose a strict privity requirement to claims of legal malpractice” and that “an attorney is not liable to a third party for negligence in performing services on behalf of his client” (Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]; but see Kumar v American Tr. Ins. Co. (49 AD3d 1353 [4th Dept 2008] [finding an exception to this strict-privity rule in cases involving equitable subrogation]).

Neither the Third-party Complaint, nor Mintzer’s opposftion alleges that an exception to the strict privity rule is appropriate because the doctrine of equitable subrogation is applicable. As Mintzer does not allege privity either, it has not stated a cause of action for legal malpractice against Pillinger. Nor does it have a cause of against Pillinger for legal malpractice. It is plain that Mintzer is not in privity with Pillinger and that equitable subrogation is not applicable to the relationship between the two law firms (see Fasso v Doerr, 12 NY3d 80 [2009] [noting that “[i]t is well established that when an insurer pays for losses sustained by its insured that were occasioned by a wrongdoer, the insurer is entitled to seek recovery of the monies it expended under the doctrine of equitable subrogation”]. Accordingly, the branch of Pillinger’ s motion that seeks dismissal of Mintzer’ s claim for legal malpractice must be granted.”



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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.