Utilisave, LLC v Fox Horan & Camerini, LLP  2018 NY Slip Op 33284(U)  December 18, 2018  Supreme Court, New York County  Docket Number: 652318/2014  Judge: Kathryn E. Freed is a complicated case involving rotating ownership of a party in litigation, purchases from the liquidating trustee and 10 lawsuits in multiple states.  Judge Freed eventually rules on summary judgment in what is otherwise a summary decision.

“Utilisave is a limited liability company organized in Delaware with its principal place of business in this state (affirmation of James G. McCamey [McCamey affirmation], exhibit P [complaint] 1 6). Nonparty Michael H. Steifman (Steifman) founded Utilisave’s predecessor in 1991 and served as a Utilisave employee (id.,  9, 14). Nonparty MHS Venture Management  Corp. (MHS), an entity wholly owned by Steifman, was one of Utilisave’s two managing members (id.,  13). Mikhael Khenin (Khenin), the second managing member, was Utilisave’s CEO (id.) In 2007, Steifman and MHS brought an action against Khenin and Utilisave, Stefman v Khenin, Supreme Court, Westchester County Index Number 8271/2007 (the Prior Action), for wrongfully withholding distributions and salary payments and for removal of Khenin as CEO (complaint 15-16). Fox, a law firm based in New York, and Rivkin, a former partner at Fox, represented Utilisave from January 2008 through July 2011, when a judgment was entered against Utilisave after a bench trial (id.,  7-8, 19 and 32).
Plaintiff alleges that, during the pendency of the Prior Action, Khenin’s term as CEO expired in 2009, as set forth in his employment agreement. Nonetheless, under defendants’ counsel, Khenin renewed his employment agreement without MHS’s knowledge, irrespective of the terms in Utilisave’s operating agreement that required the consent of both managing members (id.,  57). Khenin then paid himself unauthorized distributions and excessive compensation, misappropriated Utilisave’s confidential information, and undertook other actions that caused Utilisave harm (complaint,  26-32, 45). Ultimately, the judgment in the Prior Action included a declaration that Khenin’s renewed employment agreement was void (id., 57-58). ”

“”The doctrine of collateral estoppel … precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984] [internal citations omitted]). Thus, the two elements necessary to invoke collateral estoppel are “an identity of issue which has necessarily been decided in the prior action and is decisive of the present action” and “a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d 295, 303-304 [200 I], cert denied 535 US 1096 [2002] [internal citation omitted]). “[T]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in the prior action or proceeding” (Ryan, 62 NY2d at 501 ).
The court finds that the Disqualification Order has no preclusive effect on the present action. First, with respect to the element of identicality of issues, the Disqualification Order did not determine any issue that would have precluded a legal malpractice claim against defendants (see Wachtel!, Lipton, Rosen & Katz v CVR Energy, Inc., 143 AD3d 648, 648-649 [I st Dept 2016]). To state a cause of action for legal malpractice, a plaintiff must plead “the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006], a.ffd 9 NY3d 836 [2007], cert denied, 552 US 1257 [2008] [citations omitted]). The two issues necessarily decided in the Disqualification Order related to whether the court should (I) disqualify Butler, Fitzgerald, Fiveson & McCarthy P.C. and Tibbets, Keating & Butler, LLC from representing Utilisave because of purported conflicts of interest and (2) order Khenin to consult with and obtain Steifman’s consent on the selection and retention of counsel for Utilisave. Whether defendants were negligent in providing Utilisave with advice was not at issue in the Prior Action. Likewise, the Prior Action did not determine whether defendants breached their contract to Utilisave, whether defendants aided and abetted Khenin’s breach of his fiduciary duty to Utilisave, and whether defendants were unjustly enriched because they were paid for the legal services rendered.

Furthermore, defendants were not in privity with Utilisave, Steifman, MHS or Khenin in the Prior Action. Privity is an “amorphous concept not easy of application” (D ‘Arata v New York Cen. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990] [citation omitted]). A nonparty to a prior litigation may be deemed in privity with a party in a prior litigation if “his [or her] own rights or obligations in the subsequent proceeding are conditioned in one or another on, or derivative of, the rights of the party to the prior litigation” (id. [citations omitted]). Plainly, Utilisave’s claims are not derivative of or conditioned upon the rights of any party in the Prior Action. More importantly, the language in thepisqualification Order does not absolve defendants of any a_llegedly negligent actions they may have taken. Indeed, the complaint alleges that Utilisave was harmed by defendants’ representation of it in the Prior Action, not that Khenin’s selection of defendants as Utilisave’s counsel was improper. “

Email this postTweet this postLike this postShare this post on LinkedIn
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.