In a general sense, the failure to perfect is a failure to follow up.  The attorneys did some work, but then failed to sew up the final product.  In A & L Vil. Mkt., Inc. v 344 Vil., Inc. 2019 NY Slip Op 02304 Decided on March 27, 2019 Appellate Division, Second Department it was the not-altogether uncommon failure to perfect the UCC-1 forms, which would have set up a lien in favor of the client.  Others got there first, and all was lost in the sale of a grocery story.

“The defendant Frank D’Errico of the defendant law firm, D’Errico Dreeben, LLP (hereinafter together the D’Errico defendants), represented the plaintiff in connection with the sale of its supermarket business to the defendant 344 Village, Inc. (hereinafter the buyer), for the sum of $800,000. To satisfy the purchase price, the buyer executed a promissory note in favor of the plaintiff in the amount of $500,000, and was to pay the balance at closing. In connection with the sale, the plaintiff and the buyer entered into a security agreement granting the plaintiff a security interest in certain equipment listed in the “Schedule” set forth therein (hereinafter the equipment). The buyer also executed a second promissory note in favor of the plaintiff in the amount of $200,000 in connection with the sale of the plaintiff’s “dairy, frozen food, meat and produce inventory” (hereinafter the inventory). The buyer allegedly defaulted under the promissory notes by failing to pay the amounts due to the plaintiff beginning in September 2009. In December 2010, the buyer abandoned the supermarket.

In May 2011, the plaintiff commenced this action against, among others, the D’Errico defendants, alleging, inter alia, legal malpractice based on the D’Errico defendants’ failure to perfect the plaintiff’s security interest in the equipment and inventory by filing a UCC-1 financing statement. The plaintiff alleged that as a result of the D’Errico defendants’ negligence, a third party gained a superior security interest “against the collateral identified in the security agreement.” The D’Errico defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that their alleged negligence in failing to file the UCC-1 financing statement did not proximately cause the plaintiff’s alleged damages. The Supreme Court denied the D’Errico defendants’ motion, and the D’Errico defendants appeal.”

“Here, the D’Errico defendants do not dispute that they had an attorney-client relationship with the plaintiff and that they failed to perfect the plaintiff’s security interest in the equipment and inventory. Moreover, we agree with the Supreme Court’s determination that triable issues of fact existed with respect to whether the plaintiff sustained damages proximately caused by the D’Errico defendants’ alleged malpractice (see Portilla v Law Offs. of Arcia & Flanagan, 125 AD3d 956, 957; Blanco v Polanco, 116 AD3d 892, 895). Accordingly, we agree with the court’s denial of the D’Errico defendants’ motion for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them.”

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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.