In what looks like a 9 year battle over attorney fees and legal malpractice allegations, it appears that everyone loses in this case.  Filemyr v Hall  2019 NY Slip Op 31526(U)  May 28, 2019  Supreme Court, New York County  Docket Number: 654563/2018  Judge: Andrew Borrok discusses limitations on attorney fee claims and the necessity of making concrete allegations of legal malpractice.

“This action arises from Mr. Filemyr’ s representation of the defendants as shareholders of 1885 –
93 7th Avenue HDFC in a separate action pursuant to a retainer agreement (the Retainer), dated
December 8, 2010 (NYSCEF Doc. No. 11). In that action, Mr. Filemyr was granted his motion
to withdraw as counsel on July 21, 2015 (NYSCEF Doc. No. 51). In his complaint, Mr. Filemyr
alleges breach of contract, and alternatively quantum meruit, for recovery of $34, 152.97 in unpaid legal fees. In their amended answer, the defendants assert three affirmative defenses and a
counterclaim for legal malpractice.”

“22 NYCRR 137 provides that if an attorney and client cannot agree on fees, the attorney is to
forward written notice to the client by certified mail or personal service. The Fee Dispute
Resolution Program, however, does not apply to “disputes where no attorney’s services have
been rendered for more than two years” (22 NYCRR § 137.1(6)). Failure to serve clients with
notice of their right to arbitrate, and failure to allege in a complaint that clients received such
notice and did not file a timely request for arbitration requires dismissal of the complaint (Paikin
v Tsirelman, 266 AD2d 136, 136-137 [1st Dept 1999]). It is undisputed that Mr. Filemyr did not
provide notice of the defendants’ right to arbitrate because he served the required notices on June
25, 2018 (NYSCEF Doc. No. 52, collectively the Notices), i.e., more than two years after he last
rendered attorney’s services. To wit, even though the defendants received notice from Mr. Filemyr, the notice was provided when the defendants’ right to arbitrate was already time barred
by 22 NYCRR § 137.1(6) (see NYSCEF Doc. No. 53). Therefore, Mr. Filemyr motion to
dismiss the defendants’ affirmative defenses based on laches/waiver/unclean hands is denied and
the defendant’s cross motion to dismiss the complaint is granted. ”

“In this case, the defendants’ assert conclusory allegations they would have recovered lost
proceeds of an apartment sale and saved legal fees but for Mr. Fil em yr’ s departure from the
ordinary standards of professional conduct and breach of fiduciary duty (NYSCEF Doc. No. 47,
iJ 19). While the amended answer refers to instances when the defendants were unhappy with
Mr. Fil em yr’ s representation, the defendants fail to plead specific factual allegations that
establish but for Mr. Fil em yr’ s representation, there would have been a more favorable outcome
in the underlying action (see Dweck Law Firm, LLP v Mann, 283 AD2d 292, 293 [1st Dept
2001]). In their opposing papers, the defendants do not provide an affirmation in further support of their allegations. Accordingly, the defendants’ counterclaim for legal malpractice is
dismissed.”

 

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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.