It’s seen from time to time, but rarely. Pro-se plaintiffs are deprived of the right to file a lawsuit or to file motions because the Court becomes so irritated by their filings. Strujan v Kaufman & Kahn, LLP  2019 NY Slip Op 00630  Decided on January 30, 2019 Appellate Division, Second Department is an example.

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against the defendants Kaufman & Kahn, LLP (hereinafter Kaufman), and Fiden & Norris, LLP (hereinafter Fiden; hereinafter together the defendants), firms that represented the plaintiff’s adversaries in a prior action. The defendants separately moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them, and the plaintiff moved, inter alia, for leave to enter a default judgment against the defendants and to disqualify Fiden’s attorneys. Fiden also cross-moved to preclude the plaintiff from filing any further motions except by order to show cause. The Supreme Court, inter alia, denied the plaintiff’s motions, granted the defendants’ separate motions to dismiss the complaint insofar as asserted against each of them, and directed the plaintiff to make all further applications for relief by order to show cause. The plaintiff appeals.”

“Since the defendants represented the plaintiff’s adversaries in a prior action, the causes of action alleging legal malpractice and negligence are unsupported by any duty running from the defendants to the plaintiff (see Betz v Blatt, 160 AD3d 696, 698; Betz v Blatt, 116 AD3d 813, 815; Gorbatov v Tsirelman, 155 AD3d 836, 840; DeMartino v Golden, 150 AD3d 1200, 1201; Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825).

The plaintiff’s allegations of “intentional harm,” which the Supreme Court properly interpreted as stating a cause of action alleging prima facie tort, were unsupported by facts demonstrating that the defendants acted with “malicious intent or disinterested malevolence” in the prior action (Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 772; see Dorce v Gluck, 140 AD3d 1111, 1112; Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131; Smallwood v Lupoli, 107 AD3d 782, 785; Lisi v Kanca, 105 AD3d 714Shields v Carbone, 78 AD3d 1440, 1442-1443). Likewise, the allegations of defamation failed to state a cause of action. The law provides absolute immunity from liability for defamation based on oral or written statements made by attorneys in connection with a proceeding before a court ” when such words and writings are material and pertinent to the questions involved'” (Front, Inc. v Khalil, 24 NY3d 713, 718, quoting Youmans v Smith, 153 NY 214, 219; see Weinstock v Sanders, 144 AD3d 1019, 1020; see also Stega v New York Downtown Hosp., 31 NY3d 661).

The plaintiff’s remaining causes of action are not recognized in New York or are inadequately pleaded (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56; Scialdone v Stepping Stones Assoc., L.P., 148 AD3d 953, 954-955; Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 711; 42 USC § 1983; CPLR article 14-A).

“Public policy generally mandates free access to the courts” (Vogelgesang v Vogelgesang, 71 AD3d 1132, 1134; see Sassower v Signorelli, 99 AD2d 358, 359). Although a pro se litigant is afforded ” some latitude,'” he or she is not entitled to rights greater than any other litigant and may not disregard court rules or deprive an adversary of rights normally enjoyed by an opposing party (Strujan v Glencord Bldg. Corp., 137 AD3d 1252, 1254, quoting Mirzoeff v Nagar, 52 AD3d 789, 789; see Matter of Chana J.A. v Barry S., 135 AD3d 743, 744; Walter v Jones, Sledzik, Garneau & Nardone, LLP, 67 AD3d 671, 672). Accordingly, “when a litigant is abusing the judicial process by harassing individuals solely out of ill will or spite, equity may enjoin such [*2]vexatious litigation” (Breytman v Pinnacle Group, 110 AD3d 754, 755; see Breytman v Schechter, 101 AD3d 783, 785; Vogelgesang v Vogelgesang, 71 AD3d at 1134; Matter of Simpson v Ptaszynska, 41 AD3d 607, 608; Duffy v Holt-Harris, 260 AD2d 595; Matter of Shreve v Shreve, 229 AD2d 1005). Here, the plaintiff’s pattern of vexatious and duplicative motion practice warranted the modest limitation of directing the plaintiff to bring future motions via order to show cause (see Strujan v Glencord Bldg. Corp., 137 AD3d at 1254).”

Print:
EmailTweetLikeLinkedIn
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.