Client hires attorney to do Surrogate’s Court case.  Attorney hires CPA to do Estate tax returns.  CPA fails to file the returns timely and loses a six-figure refund on the statute of limitations.  CPA is sued and motion practice follows.  In Mazur Carp & Rubin, P.C. v Cohen & Schaeffer, C.P.A., P.C.  2019 NY Slip Op 31735(U)  June 18, 2019  Supreme Court, New York County    Docket Number: 153583/2014  Judge: Kathryn E. Freed mostly finds for Plaintiff.

“Plaintiffs Mazur Carp & Rubin, P.C. (“Mazur CarP”), Karen Cashman (“Cashman”), and David Gallagher (“Gallagher”) move, pursuant to CPLR 3212, for summary judgment on their causes of action for accounting malpractice and breach of1:contract. They further move to dismiss the counterclaims of defendant Cohen & Schaeffer, C.P.A., P.C. (“Cohen & Schaeffer”). Cohen & Schaeffer opposes the motion and cross-moves, pursuant to CPLR 3212, for summary judgment
on its counterclaims. Plaintiffs oppose the cross-motion. After oral argument, and after reviewing
the parties’ papers and the relevant statutes and caselaw, it is ordered that the motion and cross
motion are decided as follows.”

“The first issue before this Court is whether plaintiffs have established a prima facie case of
accounting malpractice against Cohen & Schaeffer. This Court finds that plaintiffs have done so.
“A claim of professional negligence requires proof that there was a departure from accepted
standards of practice and that the departure was a proximate cause of [plaintiff’s] injury.” (D.D .
Hamilton Textiles, Inc. v Estate of Mate, 269 AD2d 2 I 4, 215 [1st Dept 2000].) Plaintiffs’ expert
witness, Basile, identifies several provisions of Title 31 of the Code of Federal Regulations from
which Cohen & Schaeffer may have departed. (Doc. 22.) Specifically, Basile cites § 10.36 of the
statute, which provides that accounting firms shall have “adequate procedures” to ensure
compliance with regulations governing accounting standards and practices. (Id. at 7-8.) Plaintiffs
have further shown that there was a substantial lapse in comunication between them and Cohen
& Schaeffer (Doc. 16 at 25), and that Cohen & Schaeffer produced the prepared tax return in April
of 2012 (Doc. 8 at 9), over one year after the statute of limitations for a federal tax refund had run. Because the estate would have received a refund but for Cohen & Schaeffer’s late preparation of
Grant’s individual taxes, plaintiffs have established their prima facie case on their first cause of
action for accounting malpractice. ”

“The last issue before this Court is whether Cohen & Schaeffer’s counterclaims for breach
of contract and negligence should be dismissed. (Doc. 8 at 18-20.) As previously discussed, the
breach of contract claim is dismissed pursuant to CPLR 3211 (a)( 1 ). Thus, the only remaining issue
is whether Cohen & Schaeffer’s counterclaim for negligence must be dismissed. “To prevail on a negligence cause of action, a [party] must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages.” (MVB Collision, Inc. v Allstate Ins. Co., 129 AD3d I 041, 1042 [2d Dept 2015].) This Court cannot ascertain, based on the papers, what, if any, damages Cohen & Schaeffer has suffered; if any party has suffered damages in this litigation, it is the estate. Moreover, in asserting its counterclaims in its answer, Cohen & Schaeffer did not allege that it sustained damages. (Doc. 11 at 5-6.) Rather, defendant pleaded as follows:
“Consequently, plaintiff … is obligated to pay any damages, including but not limited to any ‘lost’
refunds that might, otherwise, have inured to the benefit: of, inter alia, the Estate of LUCIE
MACKEY GRANT.” (Id. at 6.) Thus, Cohen & Schaeffer’s own pleading suggests that it is the estate which has sustained damages. Thus, the branch of Mazur Carp’s motion seeking to dismiss the counterclaim for negligence is granted pursuant to CPLR 321 l(a)(l). “

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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.