It is rare that Courts leave legal malpractice counterclaims in a case which starts out as an attorney fee claim; it is more rare that a late amended claim is permitted.  However, in Davidoff Hutcher & Citron LLP v Parada  2019 NY Slip Op 31121(U) April 22, 2019  Supreme Court, New York County Docket Number: 152533/2016 Judge Paul A. Goetz permitted amendment to add a legal malpractice counterclaim.

“Plaintiff Davidoff Hutcher & Citron LLP commenced this action against its former client, defendant Maria Del Pilar Nava Parada, for unpaid legal fees arising from plaintiffs representation of Ms. Parada in a divorce proceeding. In her answer, Ms. Parada asserted a counterclaim for unjust enrichment based on plaintiffs alleged excessive billing practices. By order dated November 26, 2018, this court granted plaintiffs motion for summary judgment on its complaint for unpaid legal fees. Plaintiff now moves pursuant to CPLR 3212 for summary judgment dismissing Ms. Parada’s counterclaim for unjust enrichment. In a separate motion, defendant Ms. Parada moves pursuant to CPLR 3025 to amend her answer to assert additional counterclaims arising from plaintiffs alleged malpractice in representing defendant in a divorce proceeding. The motions are consolidated for purposes of this decision. ”

“With respect to the proposed counterclaim for legal malpractice, defendant Ms. Parada alleges that as a result of plaintiffs failure to complete certain tasks in the underlying divorce proceeding, Ms. Parada was forced to enter into an unfavorable settlement agreement with her ex-husband. Affirmation of Peter Hanschke dated February 26, 2019, Exh. C, if 22. Althoug plaintiff argues that Ms. Parada’s allegations are speculative and that she will not be able to show that plaintiffs actions caused Ms. Parada to enter into this agreement, it cannot be said at this stage that the proposed counterclaim is palpably insufficient or completely devoid of merit so as to warrant denial of her motion to amend. Cruz v. Brown, 129 A.D.3d 455, 456 (1st Dep’t 2015).

Further, Ms. Parada provided a reasonable excuse for her delay in asserting this claim as the underlying divorce proceeding finally settled in December 2018 and defendant moved promptly
thereafter to amend her counterclaims. Accordingly, it is ORDERED that the motion for summary judgment is granted and the counterclaim for unjust enrichment is dismissed; and it is further
ORDERED that the motion to amend to assert additional counterclaims is granted only to
the extent that defendant Ms. Parada may assert a counterclaim for legal malpractice as alleged
in the proposed amended answer and counterclaims attached to the motion papers, and is
otherwise denied; “

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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…

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.