Although really only a procedural decision,Matz v Sol Klein P.A., Inc.  2019 NY Slip Op 30166(U) January 17, 2019  Supreme Court, New York County  Docket Number: 155506/2016
Judge: Kathryn E. Freed  does discuss the limits of a broker’s / adjuster’s obligations.  Here, Sol Klein argues that it had no responsibility to advise the insured of a second policy which might have covered their loss.  Sol Klein unsuccessfully moved to dismiss and here unsuccessfully moves to reargue.

“Construing the complaint in a light most favorable to plaintiff[s], it sets forth a
cause of action in negligence as against Klein Inc. based on its failure to properly
adjust their claim. Specifically, as noted above, plaintiffs allege that Klein Inc.
failed to inform Aboulafia and the Aboulafia Firm about the existence of the
Technology Policy, despite the fact that they knew about the same. Klein Inc.
asserts, in effect, that its retainer agreement constitutes “documentary evidence”
precluding the claims against it because it only required the company to adjust the
claim and not to notify the Aboulafia Firm of any course of action it should take.
The agreement provides, inter alia, that it is “valid only if both it and [the] attached
notice of cancellation are written in the same language as that principally used in
the oral negotiations and presentation.” Doc. 28. Since the agreement does not
contain any details about any oral negotiations or presentation, it clearly cannot be
considered “documentary evidence” pursuant to CPLR 3211 (a)(I ). Nor does
Klein’s affidavit in support of the motion constitute “documentary evidence.” See,
e.g., J.A. Lee Electric, Inc. v City of New York, 119 AD3d 652 (2d Dept 2014);
Flowers v 73rd Townhouse, LLC, 99 AD3d 431 (JS1 Dept2012).

Doc. 39, at 8-9.
Klein Inc. moves for reargument of the initial motion, asserting that this Court erred in refusing to dismiss the complaint against him based on CPLR 3211 (a)( 1) (documentary evidence) and (a)(7) (failure to state a cause of action).

A motion for reargument pursuant to CPLR 2221 ( d) is designed to afford a party an opportunity to demonstrate that, in issuing a prior order, the court overlooked relevant facts or that it misapplied a controlling principle oflaw. See Foley v Roche, 68 AD2d 558, 567 (1st Dept 1979). “Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted.” William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 (1st Dept 1992) (citations omitted).  Thus, the motion is not to be used as a vehicle for rehashing what was already argued or for raising new questions. See Simpson v Loehmann, 21 NY2d 990, 990 ( 1968).

Klein Inc. argues that it had no duty to advise Aboulafia or the Aboulafia Firm about the claim submitted to TIC, which is what it argued in the initial motion. Doc. 9, at par. 16. Further, it sets forth no authority for this argument. Moreover, as this Court stated in the initial order, Klein Inc. did not submit documentary evidence warranting dismissal of the negligence claim against it. Thus, Klein Inc. ‘s motion for reargument is denied.”

 

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.