Sure, the attorney made mistakes.  Heck, the mistakes were so bad the Court “excoriated” him.  Good enough yet?  Nope. U Joon Sung v Park  2019 NY Slip Op 30107(U)  January 11, 2019
Supreme Court, New York County  Docket Number: 159279/2015 Judge: Kathryn E. Freed shows that departure is merely the first step in a 4-step dance.  Next?  Proximate cause and “but for” causation.  In a Motor Vehicle setting that means that “serious injury” within the meaning of the Insurance Law has to be shown.

“In this legal malpractice action, plaintiff U loon Sung moves, pursuant to CPLR 3212, for summary judgment on the issue of defendants Andrew I. Park, Esq., Sim & Park, LLP, and Andrew Park, P.C.’s liability for their failure to duly prosecute his claims in an underlying personal injury action. After oral argument, and after a review of the parties’ papers and the relevant statutes and caselaw, it is ordered that the motion is denied. ”

” In the earlier of the two decisions, this Court denied plaintiffs motion to vacate a dismissal of an
underlying personal injury action styled U Joon Sung v Feng Ue Jin, Supreme Court, Queens County Index Number 24966/09 (“the underlying action”). (Doc. 44.) Defendants herein
represented plaintiff in that matter. (Doc. 46 at 3-4.) In refusing to vacate the default, this Court
excoriated defendants’ “overall lack of diligence in prosecuting [plaintiffs] case” (Doc. 44 at 5),
and also noted that they failed to demonstrate a meritorious cause of action on behalf of plaintiff
by not “submit[ting] any competent medical evidence” (id.). This decision was appealed and
subsequently upheld by the Second Department by an order issued on April 1, 2015. (Doc. 45.) ”

“Plaintiffs primary argument in moving for summary judgment against defendants is that,
“given the underlying liability involved a rear-end collision which occurred while [he] was at a
complete stop … he would have prevailed in the underlying action” but for defendants’ negligence
in failing to prosecute his action. (Doc. 41 at 6.) Plaintiff cites Insurance Law§§ 5102(a) and
5104(a) in support of his underlying injury action.

This Court determines that summary judgment must be denied because plaintiff has failed
to establish his prima facie showing that he would have prevailed on the merits of his underlying
Insurance Law§§ 5102(a) and 5104(a) claims but for the defendants’ negligence.§ 5102(a) merely
provides the statutory definition for “basic economic loss” for Article 51 of the Insurance Law.
(See Insurance Law§ 5102[a].) § 5104(a) is limited only to claims that involve a “serious injury.”
(See McLoyrd v Pennypacker, 178 AD2d 227, 227 [I st Dept 1991] (“With the adoption of no-fault
insurance in this State, the Legislature has sought to remove from the judicial arena litigation
involving all claims save those involving the most serious physical injury.”).) “In order for a nonpermanent injury to be considered ‘serious’ … there must be a medical determination as to the
extent of the injury and its adverse impact on the injured party’s ability to perform his usual and
customary daily activities.” (Id.) ”

“In a similar vein, plaintiff’s evidence on the motion does not eliminate triable issues of fact.
Although defendant Park-admitted at his deposition that he understood that the underlying case
was dismissed due to his. failure to prosecute plaintiffs action (Doc. 58 at 5-6), plaintiff has not
shown that he would have established that he sustained a “serious injury” had the case gone
forward. Finally, while plaintiff submits the reports of two witnesses, those experts only made
conclusions as to plaintiffs lost wages due to the accident and are not dispositive on the issue of
liability. (Docs. 63-64.) Thus, summary judgment against defendants on plaintiffs claims for legal
malpractice is denied. “

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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.