In Pugliese v Martin Law Group, P.C.  2019 NY Slip Op 01810  Decided on March 13, 2019
the Appellate Division, Second Department  reminds that legal malpractice consists of more than a mere mistake.  Plaintiff must still prove proximate or “but for” cause.  Merely failing to perfect an appeal is insufficient.

“ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

In 2014, the plaintiffs commenced this action to recover damages for legal malpractice. In their first cause of action, the plaintiffs allege that the defendants committed legal malpractice when they failed to perfect and prosecute an appeal from an order dismissing an underlying action entitled Pugliese v Allstate Indemnity Company, commenced in the Supreme Court, Dutchess County, under Index No. 7265/09 (hereinafter the underlying action). The underlying action sought insurance coverage under a homeowners insurance policy for losses to property caused by a fire.

“A plaintiff in an action alleging legal malpractice must prove that the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages” (Harris v Barbera, 163 AD3d 534, 535). Even if a plaintiff establishes that an attorney failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney’s negligence (see Di Giacomo v Michael S. Langella, P.C., 119 AD3d 636).

Here, we disagree with the Supreme Court’s determination that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the first cause of action. The evidence submitted in support of the defendants’ motion did not establish, prima facie, that the plaintiffs could not prove a breach of a duty to perfect and prosecute an appeal in the [*2]underlying action (see Barnave v Davis, 108 AD3d 582). Furthermore, the defendants also failed to establish, prima facie, that had they perfected and prosecuted the appeal, the appeal would not have been successful (see Coccia v Liotti, 70 AD3d 747). Since the defendants failed to make their prima facie showing, we do not need to consider the sufficiency of the plaintiffs’ opposition papers (see Winegrad v New York Univ. MedCtr., 64 NY2d 851, 853).”

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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.