Since attorney fees seem to power the world, allowing for litigation and defense, and accounting for more than 60% of all attorney law suits, it is not surprising to see Soni v. Pryor  come up again and again.  In McGlynn v Burns & Harris  2019 NY Slip Op 02335  Decided on March 27, 2019
Appellate Division, Second Department the question is insurance for a defense client.

“The plaintiff commenced this action alleging, inter alia, that the defendants Burns & Harris and Allison R. Keenan (hereinafter together the law firm defendants) committed legal malpractice in the prosecution of an underlying personal injury action. The plaintiff alleged that the failure of the law firm defendants to identify the insurance carriers for the defendants in the underlying action and to provide notice to those insurance carriers of the underlying action resulted in those insurance carriers denying coverage as untimely. In moving for summary judgment dismissing the complaint insofar as asserted against them, the law firm defendants argued that their alleged failure to identify the underlying defendants’ insurance carriers did not proximately cause the plaintiff damages because, by the time the law firm defendants were retained, it was too late to provide timely notice of the accident. The Supreme Court granted the law firm defendants’ motion, and the plaintiff appeals.

In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Mavroudes v Cronin & Byczek, LLP, 45 AD3d 817, 818-819). In order to be entitled to summary judgment, the movant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853).

Here, the law firm defendants failed to demonstrate, prima facie, the absence of [*2]proximate cause. There are triable issues of fact as to whether the plaintiff could have provided timely notice of the accident after the law firm defendants were retained (see e.gSoni v Pryor, 139 AD3d 841, 844; Nationwide Mut. Fire Ins. Co. v Maitland, 79 AD3d 1348Allstate Ins. Co. v Marcone, 29 AD3d 715;Appel v Allstate Ins. Co., 20 AD3d 367). Accordingly, the law firm defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them should have been denied, regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 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.