An-Jung v Rower LLC  2019 NY Slip Op 30600(U)  March 6, 2019  Supreme Court, New York County  Docket Number: 152694/2018  Judge: Francis A. Kahn III is a thoughtful discussion of the difference between legal malpractice and an overbiling case.  Here, in a matrimonial setting, plaintiff’s case is that the bills lack any discernible detail and are excessive.  Is this legal malpractice, fraud or unjust enrichment?  No.  Read on for the Court’s explanation.

“In the complaint, the facts alleged focus nearly exclusively on Defendants’ billing practices during the period of representation. The allegations made include: the total amount billed, the rates charged by each employee, the justification or lack thereof for the rates charged by each employee and the amounts billed for particular services. The Plaintiff asserts five causes
of action against Defendants as follows: [ 1] breach of contract and the implied covenant of good
faith and fair dealing, [2] unjust enrichment, [3] breach of fiduciary duty, [ 4] fraud, and [ 5]
negligence. Plaintiff seeks as compensatory damages “at least” $93,920.00 on each cause of
action along with interest and attorney’s fees.”

“A fair overall reading of the complaint reveals that Plaintiffs grievance against Defendant is overbilling, not professional negligence. Although Plaintiffs negligence cause of action alleges a breach of the standard of care, it does not tum “on the quality or content of the legal advice that defendants rendered to plaintiffs, let alone a finding that the defendants failed to meet professional standards in rendering legal advice” to Plaintiff (see Johnson v Rose, Misc3d_, 2014 NY Misc. LEXIS 4052014 [Sup Ct, NY County 2011]). As such, Plaintiffs first four causes of action are not duplicative of her negligence claims (see Postiglione v Castro, 119 AD3d 920, 922 [2d Dept 2014]; Cherry Hill Mkt. Corp. v Cozen O’Connor P. C., 118 AD3d 514, 515 [!51 Dept 2014]). ”

“As to the sufficiency of the Plaintiffs negligence claim, based upon the nature of a professional malpractice claim as analyzed above and that the gravamen of the complaint concerns excessive billing, the fifth cause of action fails to state a claim of either negligence or legal malpractice (see, Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [151 Dept 2014]).

As to Plaintiff’s fourth cause of action, “[t]o properly plead a cause of action to recover
damages for fraud, the plaintiff must allege that (I) the defendant made a false representation of
fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order
to induce the plaintiffs reliance, ( 4) there was justifiable reliance on the part of the plaintiff, and
(5) the plaintiff was injured by the reliance” (Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d
1185, 1188-1189 [2 Dept 2012]; see also Eurycleia Partners, LP v Seward & Kissel, LLP, 12
NY3d 553 [2009]).

While incontrovertible proof of fraud is not required at the pleading stage, CPLR 3016[b]
mandates particularity such that elementary facts from which misconduct may be inferred must
be stated (see Eurycleia Partners, LP v Seward & Kissel, LLP, supra). Allegations of fraud
should be dismissed as insufficient where the claim is unsupported by specific and detailed
allegations of fact in the pleadings (see Callas v Eisenberg, 192 A.D.2d 349 [I st Dept 1993]; see
also Ben-Zvi v Kronish Lieb Weiner & Hellman LLP, 278 AD2d 167 [1st Dept 2000])”

“Here, the existence of the parties’ retainer agreement, which was annexed to the
complaint, is undisputed. As to its applicability, the retainer defines the parties’ rights and
responsibilities as to fees, disbursements, rates and billing practices. In opposition, the only
arguments made by Plaintiff were that the Defendants admittedly breached and/or did not perform in accordance with the terms of the retainer. As such the unjust enrichment cause of
action fails. “

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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.