In a fight of first impression, Defendant is battling to keep plaintiff from taking over defendant’s potential legal malpractice case against his attorney.  In this case, it seems that the Defendant and the attorney are childhood friends, and that Defendant would do almost anything (except pay plaintive) to protect the attorney.  What loyalty!

Borges v Placeres  2018 NY Slip Op 51622(U) Decided on November 2, 2018 Civil Court Of The City Of New York, New York County Ramseur, J. is unique in that one of the parties (not a lawyer-party)  is trying to keep a legal malpractice case from commencing.

“Plaintiff/Judgment Creditor Jose Borges moved, pursuant to CPLR 5225 and 5240, to compel assignment of Defendant/Judgment Debtor Alfred Placeres’s potential legal malpractice claim against Defendant’s friend and former attorney to satisfy Plaintiff’s judgment (motion sequence 023). In a June 27, 2018 decision and order, (Borges v Placeres, 60 Misc 3d 1033 [Civ Ct NY County 2018], the “Order”), the Court granted the motion and compelled assignment of the claim. Defendant now moves by order to show cause: (1) pursuant to CPLR 5015(a)(4), to vacate the Order nunc pro tunc for lack of jurisdiction; pursuant to CPLR 2221(d), to reargue the Order; and (3) for an order directing Plaintiff to withdraw the action commenced as assignee (mot seq 024). As detailed below, reargument is granted, and the Court adheres to its original determination.”

“Similarly, where property value is not only unclear but arguably ummarketable, thus rendering it “unlikely that a turnover to the sheriff would result in satisfying the judgment,” courts have also directed turnover to a receiver to do any act “designed to satisfy the judgment” (see CPLR 5228; Udel v Udel, 82 Misc 2d 882, 884 [Civ Ct NY County 1975] [on motion of creditor, appointing receiver “to do any act designed to satisfy the judgment, including dissolution of the corporation as provided in section 1511 and section 1001 of the Business Corporation Law”]; accord Hotel 71 Mezz Lender LLC v Falor, 14 NY3d 303, 317 [2010] [“A receivership has been held especially appropriate when the property interest involved is intangible, lacks a ready market, and presents nothing that a sheriff can work with at an auction, such as the interest of a psychiatrist/judgment debtor in a professional corporation of which he is a member.”]). Moreover, the Court has “broad supervisory powers over the sheriff in conjunction with the enforcement of judgments,” including the power to “direct the sheriff to dispose of, account for, assign, return or release all or any part of any property or debt, or the proceeds thereof” (Siegel/Reilly, Practice Commentaries, CPLR 5238 C5238:1 [emphasis added] [“The list of verbs contained in CPLR 5238—dispose of, account for, assign, return, release, and in respect of both the property and the proceeds—is in this respect illustrative and not exclusive.”]; New York City Civil Court Act § 701; see also CPLR 5233[c] [“The court may direct immediate sale or other disposition of property with or without notice if the urgency of the case requires.”] [emphasis added]).Here, principles of equity favor direct assignment of the legal malpractice claim to Plaintiff. First, the value of the claim is unclear, and thus may garner no bids of value at a sheriff’s auction. Indeed, Defendant has argued vehemently, in the original motion and here, that the claim is worthless and urges the Court to order a sheriff’s sale to permit the public, including Defendant, to engage in a valueless, time-consuming formality. Second, multiple courts have noted Defendant’s obstruction of Plaintiff’s efforts to pursue the judgment, particularly in relation to Defendant’s only confirmed asset of potential value: the malpractice claim (see Order at 2). As recently as this Order to Show Cause, Defendant has stated — notably for the first time — that a sheriff’s sale would afford the opportunity to “consider trying to borrow money (if he could) and buy [the malpractice cause(s) of action] for himself in order to protect his former attorneys [*4](including a childhood friend) from frivolous and legally-baseless claims” (Def Memo at 16). In other words, Defendant disingenuously seeks another opportunity to continue to frustrate Plaintiff’s collection efforts. Principles of equity, judicial economy, and public policy counsel against that outcome.”

Accordingly, it is hereby

ORDERED that Defendant’s motion to vacate and reargue (motion sequence 024) is GRANTED solely to the extent that the branch of Defendant’s motion seeking reargument on the issue of whether the Court erred in assigning the potential malpractice cause of action directly to Plaintiff rather than directing a turnover to the sheriff is GRANTED; and it is further

ORDERED that upon reargument, the Court adheres to its original determination; and it is further

ORDERED that all other branches of Defendant’s motion are DENIED; and it is further

ORDERED that, within 10 days of receipt, Plaintiff shall serve this order with notice of entry upon all Defendants.

This constitutes the decision and order of the Court.”

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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.