How often is it that a judge gives legal advice?  Rarely does the Court set forth what whould have been the correct cause of action and then advise that there is still time.  Ferousis v Santamarina
2018 NY Slip Op 32725(U)  Supreme Court, New York County  Docket Number: 154418/2018
Judge: Arlene P. Bluth  is interesting, as well as for the final paragraph.

“This legal malpractice action arises out oft~e sale of a building owned by plaintiff. In September 2006, plaintiff entered into an exclusive real estate listing for the sale of his property located at 180 Borinquen Place in Brooklyn with D.J. Real Estate, Inc. (“DJ”). In January 2007, another real estate broker, Itzhaki Properties (NY) Inc. (“Itzhaki”), got involved. Itzhaki and DJ agreed to split any commission from a sale of the property.
Plaintiff received an offer for the building in February 2007 for $4.2 million but plaintiff declined. In October 2007, plaintiff entered into a contract to sell the building for $4 million with the same buyer that made the offer in February 2007. However, by that time DJ was purportedly no longer the exclusive broker and Itzhaki received the entire broker’s commission. DJ then commenced an action in Queens against both plaintiff and ltzhaki to recover its share of the commission. After trial, DJ was awarded a judgment for $60,000 against both plaintiff and ltzhaki. With interest, the judgment totaled over $100,000 and plaintiff paid the full amount of the judgment.”

“Plaintiff asserts legal malpractice claims against his first attorney (defendant Ruhman) and the Moving Defendants. Plaintiff claims that the Moving Defendants, who took over the representation of both Itzhaki and plaintiff in the Queens case in 2010, should not have agreed to represent both parties. Plaintiff observes that there was an ind<;!mnification agreement between plaintiff and Itzhaki dated October 9, 2007 that required ltzhaki to hold plaintiff harmless if another broker made a claim for a commission. Plaintiff insists that this constituted a clear conflict of interest that should have compelled the Moving Defendants to decline to represent both Itzhaki and plaintiff. ”

“Plaintiff also contends that the Moving Defendants failed to employ a proper legal strategy because a third-party complaint was never filed against ltzhaki and other parties, including the buyer and plaintiffs real estate attorney for the sale. Plaintiff maintains it would not have paid a judgment ifthe Moving Defendants had not committed legal malpractice .”

“Here, the Court grants the Moving Defendant’s motion to dismiss because plaintiff failed to state a cause of action. Plaintiff cannot demonstrate that he suffered damages because of the Moving Defendant’s negligence. ”

“Both plaintiff and Itzhaki were found liable for not paying DJ the commission and the instant legal malpractice case does not argue that the Moving Defendants’ alleged negligence caused plaintiff to be held liable. Instead, plaintiff complains about who paid the damages awarded to DJ. But that does not state a cause of action for legal malpractice because plaintiff can still commence an action for indemnification against Itzhaki. “Indemnification claims generally do not accrue for the purpose of the Statute of Limitations until the party seeking indemnification has made payment to the injured person” (McDermott v City of New York, 50 NY2d 211, 216, 428 NYS2d 643 [1980]). Plaintiff still has time to bring an indemnification claim against Itzhaki (see CPLR 213[2] [six-year statute of limitations for indemnity claims]).”

“If plaintiff got a free ride in the Queens litigation by having ltzhaki pay the legal bills and joining in the defense — that the original listing expired — and plaintiff never waived his right to indemnification from Itzhaki, then where is the legal malpractice? Even if he did not get a free ride, the fact is that he can still pursue indemnification, as the statute oflimitations has not yet run on the indemnification claim. Clearly, ltzhaki did not step up to pay the judgment, so plaintiff would have had to pay DJ and then chase ltzhaki.
On NYSCEF, only defendants Santamarina and Santamarina & Associates were served and there is no affidavit of service for defendant Ruhman. As more than 120 days has passed and no motion to extend the time to serve has been made, the case is dismissed in its entirety. It is dismissed against the moving defendants with prejudice and against Ruhman without prejudice. “:

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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.