It only comes up once in a while, but Jonns v Fischbarg  2018 NY Slip Op 32353(U)  September 18, 2018  Supreme Court, New York County  Docket Number: 150729/2017 Judge: Kathryn E. Freed applies an alternative “commencement” of the statute of limitations found in McCoy v. Feinman99 NY2d 295,301(2002).  In McCoy the Court of Appeals wrote:

“An action to recover damages arising from an attorney’s malpractice must be commenced within three years from accrual (see CPLR 214 [6] ).   A legal malpractice claim accrues “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court” (Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 [1994] ).   In most cases, this accrual time is measured from the day an actionable injury occurs, “even if the aggrieved party is then ignorant of the wrong or injury” (id.).  “What is important is when the malpractice was committed, not when the client discovered it” (Shumsky, 96 N.Y.2d at 166, 726 N.Y.S.2d 365, 750 N.E.2d 67;  Glamm v. Allen, 57 N.Y.2d 87, 95, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982] ).2  Though we have recognized tolls on this three-year limitations period under the continuous representation doctrine (see Shumsky at 167-168, 726 N.Y.S.2d 365, 750 N.E.2d 67), we have recognized no exception to measuring the accrual date from the date of injury caused by an attorney’s malpractice.   Thus, the key issue on this appeal is when plaintiff’s actionable injury occurred.”

Here, in Jonns, Supreme Court found: “Here, Fischbarg asserts that the three-year limitations period for legal malpractice (see CPLR 214[6]) expired because, although he drafted the purchase agreement in August of 2010 (Docs. 6 at 5, 23 at 2), Jonns commenced the instant action in March of 2017 (Doc. 8 at 11 ), more than three years after the purchase agreement was drafted and eventually signed by Dorsia and Jonns. However, the limitations period did not begin to run in August of 2010. As the Court of Appeals has held, the “accrual time is measured from the day an actionable injury occurs … . “(McCoy, 99 NY2d at 301.) Although Fischbarg may have improperly drafted the purchase agreement in August of2010, his negligence did not become actionable until Jonns suffered actual damages. In this instance, Jonns allegedly suffered actual damages when he was forced to defend himself in the Dorsia action, which was commenced in June of 2016,8 as a result ofFischbarg’s failure to advise him not to sign the purchase agreement in his own personal
capacity. Thus, Jonns’ legal malpractice claim is timely.

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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.