Too speculative is a defense commonly utilized by defendants in legal malpractice settings.  Here, in Birch v Novick & Assoc., P.C.   
2019 NY Slip Op 31712(U) June 14, 2019 Supreme Court, New York County Docket Number: 161445/13, Justice Carol R. Edmead discusses just how speculative they might be.

“Defendants argue that the complaint must be dismissed, as Plaintiff has not sustained any ascertainable damages. Weinblatt, one of the attorney’s Plaintiff hired after losing confidence in
Defendants, who is also a CPA, sent Plaintiff an email on November 21, 2012, stating that her share of her residuary estate, “based upon [Kappenberg] receiving no elective share” was “$1,800, 709 .11 “4 Plaintiff submits no competing computation of what Plaintiff would have been awarded if she successfully challenged Kappenberg’ s right of election.

Since Plaintiff ultimately received $2.3 in the settlement, Defendants argue that she cannot show actual damages. Hochberg_, Defendants’ counsel, opines: “Plaintiff received a surplus of approximately $500,000 as a result of the efforts of (Defendants] and co-counsel .. I am advised that … Plaintiff seeks … to recover legal fees she paid in the amount of $331,699.59 …. [T]aking Plaintiff’s claims at face value, the extra $500,00 [Defendants] obtained for Plaintiff more
than offsets the totality of the legal fees paid by the Plaintiff concerning the Underlying Matter” (NYSCEF doc No. 25-27).

Plaintiff, in opposition, argues that the 1.8 million estimate does not take into account the residual right that Plaintiff would have had in the $2.1 million trust in Kappen berg’s benefit provided for in the 2008 Will. Defendants, in reply, argue that the hypothetical worth of this residual right is impertnissibly speculative and”that Plaintiff waived her claim to any damages related to the residual right by not including it from its second amended damages chart.

Generally, a plaintiff in a legal malpractice action can recover for damages it expended – mitigating the damage of an attorney’s negligence (Kagan Lubic Lepper Finklestein & Gold v 325 Fifth Ave. Condominium, 2015 NY Slip Op. 31470[U] [Sup Ct, NY County, Kern, J][cognizable damages in a legal malpractice action include consequential damages sustained as a result of the attorney’s malpractice, including expenses such as experts fees and attorney’s fees”]). Here; as there are questions of fact relating to negligence, there are concomitant questions of fact related to consequential damages arising from the alleged negligence. That is, a factfinder could find that Defendants were negligent and that Plaintiff expended additional fees to remedy that negligence. In other words, a factfinder could find that, absent negligence, Plaintiff could have attained the $2.3 settlement without having to hire additional attorneys.

Moreover, it would it would be error for the court to determine that Plaintiff could not establish damages based on Weinblatt’s estimate as to the amount Plaintiff would have received under the 2008 Will and the $2.3 million Plaintiffinherited under the settlement. While Defendants argue that Plaintiffs residual right tO’the Kappenberg trust provided for in the 2008 Will is too speculative to serve as a Qasis to deny summary judgment, the estimate that Defendants rely on is also, fundamentally, speculative. Moreover, the question of whether Plaintiff waived any damages claim based on this residual right is a question best reserved for the factfinder. As questions of fact as to damages remain, the branch of Defendants’ motion that seeks dismissal of the complaint as Plaintiff cannot show actual damages must be 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 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.