In Jonns v Fischbarg  2019 NY Slip Op 31919(U) July 3, 2019 Supreme Court, New York County
Docket Number: 150729/2017 Judge Kathryn Freed gives a nice cogent explanation of two recurring legal malpractice principles.  One is how the statute of limitations is calculated and the other is whether multiple causes of action.  We’ll look at the statute of limitations today.

“In August of 2010, Jonns, together with a group of investors, sought to purchase the Charles Restaurant from Dorsia 8:30 LLC (“Dorsia”). (Id. at 2.) Jonns retained Fischbarg as the attorney on behalf of the investors to facilitate the transaction. (Id.) In doing so, Jonns sought to ensure that a limited liability company (“LLC”) would be formed absolving him and the investors of personal liability from their operation of the Charles Restaurant once the transaction was completed. (Id. at 2-3.) They also wanted Fischbarg to apply for sale-of-liquor licenses from the New York State Liquor Authority (“the SLA”). (Id. at 3.)
Unbeknownst to Jonns, Fischbarg also acted as the attorney for Dorsia. 1 (Id.) Nor did Fischbarg inform him that he should purchase Dorsia through an LLC if he wanted to shield his personal liability in maintaining the Charles Restaurant. (Id.) Thus, on August I l, 20 l 0, Jonns signed a purchase agreement for the Charles Restaurant in his personal capacity. (Id.) As a result, Jonns assumed up to $200,000 worth of Dorsia’s debt that existed on the date of the  signing, responsibility for Dorsia’s obligations under the lease, and the obligation to indemnify and hold Dorsia harmless for any claims arising from the Charles Restaurant’s operation. (Id.) Fischbarg
reassured Jonns that those obligations and liabilities would subsequently be assigned to an LLC
that would be owned by the investors. (Id.)”

“Once again, this Court sets forth the following analytical framework for when a legal malpractice action must be commenced: A legal malpractice action must be commenced within the three-year statute of limitations. (See McCoy v Feinman, 99 NY2d 295, 301 [2002).) In determining when the statute of limitations begins to run, courts have held that the “accrual time is measured from the day an actionable injury occurs … . “(McCoy, 99 NY2d at 301.) “What is important is when the malpractice was committed, not when the client discovered it.” (Id. (quotations omitted).) The limitations period, however, may be tolled where there is a continuing attorney-client relationship pertaining specifically to the matter in which the attorney committed the alleged malpractice (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001 ]), and where there was “a mutual understanding of need for further services in connection with that same subject matter” (Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018)). ”

“Here, Jonns alleges in his complaint that there were inadequacies with how the transaction
was handled. Specifically, Jonns alleged that there were inadequacies relating to both his personal
liabilities as well as those of the other investors (Doc. 41 at 6-9), and he further alleged that
Fischbarg assured him, subsequent to the closing, that he would take necessary steps to transfer Jonns’ liabilities to Crazy Asylum3 (id. at 6-7.) Thus, this is a situation where the client was
“acutely aware of [the] need for further representati~:m on the specific subject matter underlying
the malpractice claim.” (Johnson, 129 AD3d at 69.) Further, Fischbarg’s continued representation
to transfer Jonns’ personal liabilities to an LLC was not merely a general continuing relationship
between lawyer and client, but rather pertained “specifically to the matter in which [he] committed
the alleged malpractice,” (Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]), i.e., the handling of
the 201 O transaction. Since the complaint alleged4 that Fischbarg continued in his efforts to transfer
Jonns’ liabilities to Crazy Asylum until at least July of 2016 (Doc. 41 at 7), and since the instant
action was commenced in March of2017 (Doc. 46 at 5), this Court therefore adheres to its original
determination that Jonns’ claim for legal malpractice is timely. “

Print:
EmailTweetLikeLinkedIn
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.