Knox v Aronson, Mayefsky & Sloan, LLP  2018 NY Slip Op 09030 [168 AD3d 70]  December 27, 2018 Singh, J.  Appellate Division, First Department illustrates some important and bedrock doctrines found in legal malpractice:  the “but for” requirement, the “successor attorney” doctrine and the question of “duplication.”

“In July 2013, plaintiff sought to temporarily move from the Manhattan apartment to Connecticut for foot surgery. Despite defendant Robarge’s advice to the contrary, plaintiff, after apparently obtaining her husband’s consent, moved with the child to Greenwich, Connecticut.

On October 21, 2013, AMS filed an order to show cause to be relieved as counsel due to plaintiff’s lack of confidence in their advice. Before the order to show cause was heard, plaintiff voluntarily secured new counsel.{**168 AD3d at 73}

On May 2, 2014, while plaintiff was represented by FBK, the parties entered into a stipulation of settlement. On May 2, 2014, in open court, the parties were allocuted on the record. They stated that they understood and were satisfied with the settlement and with their attorneys’ representation.

The settlement provided for joint legal custody of the child, who would primarily reside with plaintiff. Plaintiff was required to move back to Manhattan “no later than September 1, 2014.” This obligation was deemed a “material term” of the settlement, and plaintiff agreed to pay any fees incurred in enforcing this term. The husband was required to pay FBK’s legal fees in the sum of $20,000 on plaintiff’s behalf. Plaintiff was otherwise “solely responsible for all legal and professional fees” incurred in connection with the matrimonial action.

The settlement also provided that plaintiff “withdraws her application for an Order of Protection with prejudice which she agree[d] shall be deemed dismissed on the merits after a full and fair hearing by the Court.” Since the first motion for an order of protection was resolved by the temporary stipulation, this was a second motion for a protective order, which plaintiff voluntarily withdrew as part of the settlement.

Plaintiff failed to return to Manhattan by the stated deadline under the settlement. As a result, the husband moved to compel her return, to transfer sole custody of the child to him, and for attorneys’ fees.

On September 5, 2014, Supreme Court ordered plaintiff to return “forthwith,” scheduled a custody hearing, and granted the husband’s application for attorneys’ fees subject to a showing of the amount owed. On July 15, 2015, Supreme Court directed that plaintiff pay the husband’s attorneys’ fees in the amount of $132,030.60. The court also found that a modification of the settlement was warranted and awarded the husband sole legal and primary residential custody of the child. The court cited plaintiff’s failure to timely return to Manhattan, which breached a material term of the settlement, and plaintiff’s continued exhibition of “gatekeeping” behavior toward the husband, including by making false accusations to the police. The court rejected plaintiff’s attempt to blame her failure to return to Manhattan on the husband’s failure to comply with his obligation to guarantee her lease, noting that plaintiff “made no serious effort to find a [*3]Qualified Residence” and her “obligation to move was not contingent on [the husband’s] guaranteeing a lease.”

“Turning first to plaintiff’s legal malpractice cause of action against AMS, she alleges that AMS was negligent in failing to move for attorneys’ fees, resulting in her failure to receive an undetermined award to pay her attorneys. This claim fails because plaintiff’s various successor counsel had ample time and opportunity to make such a motion, and in fact one did (although it was purportedly abandoned) (see Davis v Cohen & Gresser, LLP, 160 AD3d 484, 487 [1st Dept 2018]).{**168 AD3d at 75}

Even assuming AMS was negligent in failing to move for attorneys’ fees, by agreeing as part of the settlement[FN2] to forgo any award of attorneys’ fees except for $20,000, plaintiff cannot show that but for AMS’s negligence she would not have sustained the loss (see generally Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [1st Dept 2007], affd 11 NY3d 195 [2008] [to establish proximate cause, the plaintiff must demonstrate that “but for” the attorney’s negligence, plaintiff would have prevailed in the matter in question; failure to demonstrate proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent]; 180 Ludlow Dev. LLC v Olshan Frome Wolosky LLP, 165 AD3d 594, 595 [1st Dept 2018] [“While proximate cause is generally a question for the factfinder . . . it can, in appropriate circumstances, be determined as a matter of law”]).

Next, plaintiff claims that AMS was negligent in allegedly advising her that she was [*4]permitted to move to Connecticut, resulting in the loss of custody of the child. The damages plaintiff seeks are the attorneys’ fees incurred in connection with the husband’s motion to compel her return to New York and future legal fees she will have to expend to recover custody. Again, this claim fails because plaintiff’s alleged damages were not proximately caused by any advice given by AMS, but rather by her own subsequent failure to comply with the terms of the settlement.

[2] Turning to the breach of fiduciary duty claim, plaintiff seeks damages for pain and mental suffering, the $132,000 plaintiff was required to pay the husband for his attorneys’ fees, the attorneys’ fees needed to recover custody of the child, and punitive damages. This claim and ensuing damages sought for the breach are duplicative of the malpractice cause of action (see Alphas v Smith, 147 AD3d 557, 558-559 [1st Dept 2017] [where the court found that the relief sought in the fiduciary duty claim was identical to the legal malpractice claim as it sought similar damages]).

Even if the two causes of action are not duplicative, Supreme Court properly dismissed the breach of fiduciary cause of action. In the attorney liability context, the breach of fiduciary duty claim is governed by the same standard as a legal malpractice{**168 AD3d at 76} claim (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]). Accordingly, to recover damages against an attorney arising out of the breach of the attorney’s fiduciary duty, plaintiff must establish the “but for” element of malpractice (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 11 [1st Dept 2008]).”

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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.