Plaintiff was involved in several problematical joint real estate deals, each of which disappointed him as a participant.  Was the law firm negligent in the transactions and was plaintiff damaged thereby?  In Hobbick v Zegans  2018 NY Slip Op 32180(U)  September 5, 2018  Supreme Court, New York County  Docket Number: 159172/2017  Judge: Barbara Jaffe the answer is no.

“In April 2013, plaintiff and nonparty Calvin P. Hall jointly retained defendants to represent them in purchasing real property in Brooklyn. The closing was on September 10, 2013. Plaintiff believed that he was purchasing a 50 percent interest in the premises, and he obligated himself jointly and  severally on a purchase money mortgage of approximately $440,000. Some time after the September 10, 2013 closing, plaintiff learned that the deed reflected that his ownership interest in the premises was one percent, whereas Hall’s was 99 percent. In October 2013, unaware of defendants’ malpractice in failing to ensure his 50 percent interest in the Brooklyn property, plaintiff had defendants represent him in selling a property in Saugerties, New York. At the time, he and nonparty Christopher Matson each held a 50 percent interest in that property. Before contracting for the sale of that property, defendants failed to secure a written agreement between plaintiff and Matson establishing an equal division of net proceeds from the sale, “with appropriate co-tenant accounting adjustments.” That failure “created a crisis immediately before closing where Matson refused to close the transaction unless he received more than he was entitled to as co-tenant” with plaintiff. Thus, plaintiff was forced to accept less than the amount to which he was entitled, and incurred adverse tax consequences in avoiding litigation concerning the sale. ”

“By decision dated September 5, 2017, a third-party action for legal malpractice brought by plaintiff against defendants in Supreme Court, Kings County, was dismissed without prejudice. (NYSCEF 16). Plaintiff timely filed a notice of appeal. (NYSCEF 23, Exh. C). ”

“As plaintiff’s third-party claim was dismissed on the merits in the Kings County litigation, it may not be relitigated here. (See Heritage Realty Advisors, LLC v Mohegan Hill Dev. LLC, 58 AD3d 435, 436 [1st Dept 2009], Iv denied 12 NY3d 830 “[Not only are the two . actions based on the same transactions, but the dismissal of the prior action, to the extent that it found that MHD was not in existence at the time the compensation agreements at issue were entered into, was not merely  because of technical pleading defects, but on the merits”: complaint dismissed]; Singer v Boychuk, 194 AD2d 1049, 1051 f3d Dept 1993], Iv denied 82 NY3d 657 [grant of motion to dismiss under CPLR 321 l(a)(l) has effect of final judgment on merits]). That the dismissal was without prejudice and an appeal may be pending is of no moment. Even if the earlier decision is reversed, the action will .proceed in Kings County. ”

“On a motion to dismiss an action on the ground that it is barred by documentary evidence, the documentary evidence offered in support must utterly refute plaintiffs factual allegations, conclusively establishing the defense as a matter of law. (Goshen v Mutual Life Ins. Co. of New York, 98 NY 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 1994]). Here, although the email correspondence relied on by defendants constitutes evidence indicating that plaintiff knowingly agreed to the division of the proceeds per Matson’s ‘Counteroffer, it does not utterly refute plaintiffs allegations that defendants breached their duty·to him by failing to prepare a written agreement between him and Matson providing for an equal or rhore equitable division before entering into the contract of sale for the Saugerties property and that they failed to advise him of the tax consequences of the sale.
However, absent any factual bases in the record tending to show: 1) that Matson was amenable to dividing the sales proceeds otherwise, and 2) the tax consequence that could have been obtained with tax advice from defendants, plaintiff’s claim for damages is speculative, thereby rendering his claim deficient as a matter of law. “

Print:
EmailTweetLikeLinkedIn
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.