Lewis Brisbois Bisgaard & Smith LLP v Fishman  2019 NY Slip Op 30413(U) February 15, 2019 Supreme Court, New York County  Docket Number: 655198/2017 Judge: Gerald Lebovits is the story of bad planning and missed opportunities.  Lawfirm hired leading legal malpractice defense firm to defend it.  Why?  Presumably it lacked legal malpractice insurance.  The case did not go well for the defendant law firm.  Why?  It seems that there was no excuse for holding back a six-figure escrow.  And then comes the account stated problem.

“Defendants point out inconsistencies in plaintiffs account-stated claim and allege that defendants protested plaintiffs legal charges orally on several occasions and sent at least two letters of protest dated September 4, 2013, and November 26, 2013. A cause of action for an account stated is

“an agreement between the parties to an account based upon prior
transactions between them with respect to the correctness of the
separate items composing the account and the balance due, if any,
in favor of one party or the other. In the case of an existing
indebtedness, the agreement may be implied as well as express. An
agreement may be implied if a party receiving a statement of
account keeps it without objecting to it within a reasonable time
because the party receiving the account is bound to examine the
statement and object to it, if objection there be. Silence is deemed
acquiescence and warrants enforcement of the implied agreement
to pay …. In the absence of fraud, mistake or other equitable
considerations making it improper to recognize the agreement, it is
conclusive.” (Chisholm-Ryder Co. v Sommer & Sommer, 70 AD2d
429,431 [4th Dept 1979] [internal citations omitted].)

“A client’s receipt and retention of an attorney’s account, without objection within a reasonable time, and agreement to pay a portion of the indebtedness, gives rise to an actionable account stated.” (Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626, 626 [1st Dept 1990].)

In the present case, plaintiff issued 12 separate invoices from June 2011 through January 2013. Defendants’ letters of protest were dated September 4, 2013, and November 26, 2013, which were thus dated two years after the first outstanding invoice was issued and eight months after the last outstanding invoice was issued. Defendants’ objections to legal charges in these letters do not preclude plaintiffs account stated claim as they were made past a reasonable time to object to the account. Further, defendants never disputed any of the invoices issued to them and never contested the accuracy of the bills or billing entries therein, but rather, merely responded to plaintiffs requests for outstanding legal fees. Thus, this court adheres to the initial determination made on plaintiffs account stated claim for legal fees in its decision dated August 27, 2018 on plaintiffs motion for summary judgment. “

Email this postTweet this postLike this postShare this post on LinkedIn
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.