Granted, reading a decision does not always illuminate the facts behind the case, but Gilbo v Horowitz  2019 NY Slip Op 30320(U)  February 9, 2019  Supreme Court, New York County
Docket Number: 158727/2017 Judge: Margaret A. Chan is very startling.  It’s a legal malpractice case along with a declaratory judgment that he was incompetent to sign a retainer or a power of attorney.  Why was he incompetent?  Was he incompetent?  Read on.

“On July 21, 2012, plaintiff attended a wedding reception in Brooklyn where he had six vodka and soda drinks in a span of two and one-half hours (NYSCEF # 7 – Hearing tr., p 17). After the reception, he left to meet friends at a nearby lounge. As he walked across Flatbush Avenue, he was struck by a motor vehicle driven by non-party Crandall Glasgow. Plaintiff sustained devastating injuries from this accident and spent nine weeks in a medically induced coma and seven months
recuperating in the hospital (NYSCEF # 1- Verified Complaint at 1l1l 12-13).

On July 27, 2012, plaintiffs mother enlisted Mark Bodner, Esq. to represent plaintiff (NYSCEF #115 – Bodner aff at ii 4). On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement (retainer) with defendant Mark L. Bodner, P.C. and simultaneously executed a power of attorney (POA) authorizing his mother to pursue a personal injury claim related to the accident on
his behalf (Complaint at 1l 18). On September 21, 2012, Bodner settled plaintiffs personal injury case with Glasgow’s insurer for the purported policy limit of $25,000.00 (id at 1l 20; Bodner aff at ii 8). Bodner avers that plaintiffs mother authorized Bodner to settle the case against the driver, Glasgow (NYSCEF # 115 -Bodner aff at ilil 8, 11). Bodner attempted to deliver the net proceeds of the settlement to Gilbo, but Gilbo rejected it (id at ,-r 28).”

“Plaintiff seeks a declaratory judgment nullifying the retainer and POA appointing his mother as attorney-in ·fact so to restore his case against the driver to the status quo. As plaintiffs mother is not a defendant here, this Decision and Order does not speak to the POA.

Bodner argues that plaintiffs basis for a rescission of the retainer is his incompetency due to his dire medical condition at the time he signed the retainer.  Bodner contends that plaintiffs conclusory allegations tending to show Bodner’s incapacity are insufficient to state a claim for rescission.
“A party’s competence to enter into a contract is presumed, and the party asserting incapacity bears the burden of proof’ (Er-Loom Realty, LLC v Prelosh Realty, LLC, 77 AD3d 546, 547 [lst Dept 2010] citing Feiden v Feiden, 151 AD2d 889, 890 [3d Dept 1989]). Plaintiff has to show by clear and convincing evidence that his mind was “so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction” (Sears v First Pioneer
Farm Credit, ACA, 46 AD3d 1282, 1284-1285 [3d Dept 2007] quoting Aldrich v Bailey, 132 NY 85, 89 [1892]). Plaintiff has to show further “that such incompetency/incapacity existed when he executed the … documents …. ” (Sears, 132 NY at 89 citing Feiden, 151 AD2d at 890).

Plaintiff avers that he “particularly pled for a Declaratory Judgment nullifying the power of attorney (“POA”), that gave his mother the power as agent, and the Bodner P.C. Retainer Agreement he signed while in a heavily medicated medically induced coma (“MIC”), both of which Plaintiff signed on September 14, 2012, only weeks after [he] was gravely injured” (NYSCEF #130 – Gilbo Aff at if 8).
Plaintiff does not deny signing the documents, which were notarized the same day. Plaintiff questions whether the notary was present when plaintiff signed since the notary, and Bodner, should have realized that plaintiff was not of sound mind (id. at if 16). Bodner provides only his allegations for the knowledge he imputes to the notary and Bodner.

Plaintiff asks this court to take judicial notice of his medical condition as alleged in his complaint because those allegations were undisputed (Gilbo Aff at if 12). This court declines plaintiffs request. But, this court takes plaintiffs allegations as true as this court must for the purposes of this motion to dismiss.

Plaintiff, who suffered a traumatic brain injury, among other injuries, was in a medically induced coma for nine weeks after being hospitalized on July 21 (Gilbo Aff at if 10; Complaint at if 12). Nine weeks from July 21 is September 22. Plaintiff signed the documents on September 14, at least one week prior to coming out of the nine-week coma. Plaintiff does not deny signing the documents but claims that “[a]t no time on September 14, 2012, was [he] of sound mind to reasonably understand
the nature and significance of the POA and the Bodner P.C. Retainer Agreement.” (Gilbo Aff at if 15). In other words, plaintiffs contention is that he signed the documents while he was in a medically induced coma, and that is the reason he lacked the capacity to understand what he signed.
Plaintiffs allegations of his medical condition are significant and serious; they are also conclusory. This court cannot jump to the conclusion plaintiff proffers for his cause of action to rescind the retainer. Bodner’s motion to dismiss plaintiffs fourth cause of action for a declaratory judgment nullifying the retainer is granted. “

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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…

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.