Judgments don’t last forever.  They lapse after a number of years.  This legal malpractice case tests the limits of how long plaintiff can wait to sue for legal malpractice.

Potenza v Giaimo  2018 NY Slip Op 07164 [165 AD3d 1186]  October 24, 2018 Appellate Division, Second Department concerns litigation that began almost 25 years ago.  “The defendants represented the plaintiff in an action against a nonparty to recover on loans that the plaintiff made to the nonparty. In 1995, the plaintiff obtained a judgment in that action. In 2009, the defendants attempted unsuccessfully to obtain a renewal judgment (see CPLR 5014). Thereafter, in 2014, the plaintiff commenced the instant action against the defendants, alleging, inter alia, legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487. The plaintiff moved to disqualify the defendant Joseph O. Giaimo from representing the defendant Giaimo Associates, LLP, and from appearing pro se. The defendants cross-moved, inter alia, for summary judgment dismissing the complaint. In the order and judgment appealed from, the Supreme Court, inter alia, denied the motion, granted those branches of the cross motion which were for summary judgment dismissing the first, second, third, and fifth causes of action, and thereupon, dismissed those causes of action.”

“The statute of limitations for causes of action alleging legal malpractice is three years (see CPLR 214 [6]; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 [2015]). A cause of action to recover damages for legal malpractice accrues when the malpractice is committed (see Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]). However, pursuant to the doctrine of continuous representation, the limitations period is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates (see Shumsky v Eisenstein, 96 NY2d at 167-168; Aqua-Trol Corp. [*2]v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957 [2016]). For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507 [1990]).

Here, the defendants satisfied their initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in 2014. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. Accordingly, we agree with the Supreme Court’s determination dismissing the plaintiff’s legal malpractice causes of action as untimely.”

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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.