Robinson v Day  2019 NY Slip Op 30153(U)  January 16, 2019  Supreme Court, New York County
Docket Number: 600907/2010  Judge: O. Peter Sherwood is an example of how even a written settlement agreement can lead to further litigation and, in this case, a claim of legal malpractice.

“In this action filed by plaintiff Adam Robinson [“AR”] in April, 2010 against his former
girlfriend and companion, the second amended complaint alleges 36 causes of action, including
constructive trust, fraud and rescission. It also asserts a claim of legal malpractice against the
David DePinto and DePinto Nomes and Associates, LLP law firm (“DePinto Parties”).
The parties executed a Settlement Agreement on February 7, 2018, and an Addendum on
March 6, 2018 (the “Agreement” or “Settlement Agreement”) (Bowler affirmation, exhibits A, B),
both intended to provide a framework for concluding eight years of contentious litigation regarding
breach of various contracts that assigned to Day “an interest in certain royalties from [The
Princeton Review] (“TPR”) and Random House” (mem at 9). The Agreement was so-ordered on
March 6, 2018 (Bowler affirmation, exhibit A at 3).
The Agreement provides, in relevant part, as follows:

Royalty Payments:
• The Royalties are owned 100% by Laura Day, Inc. LDI assigns 25% to AR during
his lifetime to terminate upon AR’s death and thereafter, all future royalty payments
revert to LDI. (It is a condition precedent to the assignment that LDI. received [sic]
general releases as set forth below, and sign off on TPR litigation as set forth
below). I
Escrow:
• It is a condition precedent to LD’ s obligations to perform, that the money is released
from escrow.
• LDI to pay AR $200,000 following the release of funds from escrow.
Katzman/ TPR Action:
• AR irrevocably instructs TPR to pay pursuant to the terms of this Agreement.
Release:
(id at 1).
• All parties (and any business entities owned or controlled by LD or AR) execute
mutual general releases and AR’s release extends to Peter Samson Day.”

“”Stipulations of settlement are judicially favored, will not be lightly set aside, and ‘are to
be enforced with rigor and without a searching examination into their substance’ as long as they
are ‘clear, final and the product of mutual accord”‘ (Forcel/ia v Geico Corp., 109 AD3d 244, 247-
48 [2d Dept 2013]). “[S]ettlement agreements are subject to the principles of contract law” (id.).
“The fundamental rule of contract interpretation is that agreements are construed in accord
with the parties’ intent … and ‘[t]he best evidence of what parties to a written agreement intend
is what they say in their writing’ …. Thus, a written agreement that is clear and unambiguous on
its face must be enforced according to the plain terms, and extrinsic evidence of the parties’ intent
may be considered only if the agreement is ambiguous [internal citations omitted]” (Riverside
South Planning Corp. v CRP!Extell Riverside LP, 60 AD3d 61, 66 [1st Dept 2008], affd 13 NY3d
398 [2009]). Whether a contract is ambiguous presents a question of law for resolution by the
courts (id. at 67). Courts should adopt an interpretation of a contract which gives meaning to every
provision of the contract, with no provision left without force and effect (see RM 14 FK Corp. v
Bank One Trust Co., NA., 37 AD3d 272 [1st Dept 2007]).
It falls to the court to determine, as a matter of law, whether an express condition precedent
exists in a contract (see Two Guys from Harrison-NY v S.F.R. Realty Assoc., 63 NY2d 396, 403 [1984]; Comprehensive Health Solutions v Trustco Bank, Natl. Assn., 277 AD2d 861, 863 [3rd
Dept 2000]). “[A] contractual duty ordinarily will not be construed as a condition precedent absent
clear language showing that the parties intended to make it a condition” ( Unigard Security Ins. Co.
v North Riv. Ins. Co., 79 NY2d 576, 581 [1992]), or “where the act to be done by the plaintiff must
naturally precede, in the order, of time what the defendant is called upon to do, and where the
former is necessary to be done to enable the defendant to perform” (Tipton v Feitner, 20 NY 423,
425 [1859]).
As a preliminary matter, the Agreement is unambiguous. It is “clear, final and the product
of mutual accord” Forcellia, 109 AD 3d at 24 7. It requires satisfaction of two conditions that must
be satisfied before LDI assigns 25% of her future Royalty Payments to Robinson. Specifically, it
requires receipt by LDI of the general releases referenced in the Agreement and “sign off [by LD.I]
on the TRP litigation as set forth below.”2 ”

“In summary, pursuant to the Agreement, Robinson is required to instruct the Royalty
Payors that LDI is 100% owner of the Royalties and to cooperate in obtaining the documentation
needed to effectuate the terms of the Agreement. Upon receipt of the instructions which shall be in a form reasonably acceptable to the Royalty Payors and Katzman, exchange of the releases
identified in the Agreement and upon execution of a written agreement with TPR/Random
House/Katzman to pay royalties directly to Robinson (25% during his lifetime and thereafter 100%
to Laura Day, Inc. and Laura Day, Inc. 75%). LDI shall execute and deliver to the Royalty Payors
(copy to Robinson) the assignment provided for in the Agreement. No Royalty payments should
be made by the Royalty Payors until the required written agreements have been signed and
delivered (to the proper party or escrow agent) and the general releases exchanged. “

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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.