A fair number of summary judgment decisions rendered in Supreme Court are reversed in the Appellate Division.  Rather than simply ask how two courts can view the same evidence in such a differing light, note the deep doctrinal differences between that which Supreme Court credited and that which the Appellate Division relied upon  in 762 Westchester Ave. Realty, LLC v Mavrelis  2018 NY Slip Op 08452  Decided on December 12, 2018  Appellate Division, Second Department.

“The plaintiff, a limited liability corporation that owned real property in the Bronx, commenced this action alleging, inter alia, legal malpractice against the defendant Bill Mavrelis, also known as William N. Mavrelis (hereinafter the defendant). Specifically, the plaintiff alleged that it had retained the defendant to prepare and file an application for a tax abatement on the plaintiff’s behalf, that the defendant filed the application late, and that the lateness of the filing was the basis for the denial of the application. Prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability with respect to the cause of action alleging legal malpractice. In an order dated January 4, 2016, the Supreme Court, among other things, granted that branch of the motion. The defendant appeals from that portion of the order.

Contrary to the defendant’s contention, the plaintiff’s motion was not premature (see CPLR 3212[f]). However, we disagree with the Supreme Court’s determination to grant that branch of the motion which was for summary judgment on the issue of the defendant’s liability for malpractice.

In an action alleging legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused plaintiff to sustain actual damages (see Zaidman v Marcel Weisman, LLC, 106 AD3d 813, 814; Erdman v Dell, 50 AD3d 627, 627-628).

Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the issue of the defendant’s liability, as it failed to present any evidence that its application for the subject tax abatement would have been granted had it been timely filed (see Zaidman v Marcel Weisman, LLC, 106 AD3d at 814; Erdman v Dell, 50 AD3d at 628). Moreover, the limited, pre-discovery record before us presents unresolved triable issues of fact regarding the cause of the late filing, including the extent, if any, to which such cause is attributable to any act or omission on the part of the defendant.

Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the issue of the defendant’s liability for legal malpractice, regardless of the sufficiency of the defendant’s opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

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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.