The question of limited retainers v. handling the entire action for a client comes up in Provenzano v Cellino & Barnes, P.C.  2018 NY Slip Op 32063(U)  August 16, 2018  Supreme Court, Suffolk County  Docket Number: 14-18725  Judge: Joseph C. Pastoressa.  Plaintiff was injured in a motor vehicle accident which Cellino & Barnes took.  They did not file a WC claim for the client who alleged she was injured in a work-related accident.  Malpractice?

“Capetola testified that he did not handle workers’ compensation claims for defendant, and would
refer any such claims to outside counsel. He recalled that during the intake interview with plaintiff, she told him that she was struck by a car after she finished work. He could not recall whether plaintiff inquired about a workers’ compensation claim, or the number of times that he met with plaintiff. Capetola recalled that he assisted plaintiff in filing a no fault insurance claim. Plaintiff did not complain to Capetola about his handling of her accident case at any point during his representation. The retainer agreement indicated that defendant’s representation of plaintiff was “to prosecute [her] claim for injuries and damages sustained as a result of an accident … (and was] limited to all steps necessary to bring the action to trial, verdict or settlement and· does not include appellate practice, Surrogate’s and/or estate work, legal work pertaining to Medicare Set Aside issues, and legal work pertaining to Medicare lien evaluation.” The scope of legal services to be provided included “initial and ongoing investigation of [the] incident; securing potential witnesses and evidence; gathering appropriate medical records, employment records, wage records, education records and other records; drafting, filing, and responding to appropriate court documents; selection and retention of experts and investigators as necessary; appearance at court proceedings, depositions and arbitrations; conducting settlement negotiations; preparing for trial as appropriate and necessary; and maintaining appropriate contact with the client throughout.” ”

“Defendant contends that it was retained to pursue a tort action on plaintiffs behalf; therefore, it
had no duty to bring a workers’ compensation claim and plaintiffs complaint should be dismissed.
Defendant made a prima facie showing that plaintiff retained its services to bring only a negligence
action against the driver of the vehicle that struck her (see Block v Brecher, Fishman, Feit, Heller,
Rubin & Tannenbaum, 301 AD2d 400, 400, 753 NYS2d 84 [1st Dept 2003]). Plaintiff testified that
when she inquired about a workers’ compensation claim, defendant told her that she did not qualify for workers’ compensation benefits and that he “was not going that route.” Additionally, Capetola testified that he did not handle workers’ compensation claims on defendant’s behalf, and that he  generally referred any such claims to outside counsel. There is no indication in the record that Capetola advised plaintiff that he would file a workers’ compensation claim on her behalf and failed to do so. ”

“Accordingly, defendant’s motion for summary judgment dismissing the complaint is granted and
the cross-motion is denied. ”


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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.