Graves v Stanclift, Ludemann, McMorris & Silvestri, P.C.  2019 NY Slip Op 05608  Decided on July 11, 2019 Appellate Division, Third Department is the story of a legal malpractice claim which alleges that the attorneys simply did no work in opposition to summary judgment and that the documents and facts existed which would have successfully opposed the motion.

“The underlying action in this case was commenced by Goodnow Flow Association Inc. (hereinafter Goodnow) against the present plaintiff, then represented by defendants, for his failure to pay homeowners’ association fees arising from his ownership of a lakefront property in Essex County. In the underlying action, Supreme Court (Buchanan, J.) granted Goodnow’s motion for summary judgment against plaintiff and dismissed plaintiff’s counterclaim, and this Court affirmed (Goodnow Flow Assn. Inc. v Graves, 135 AD3d 1228, 1231 [2016]). Plaintiff then commenced this action alleging that defendants committed legal malpractice by, among other things, failing to conduct pretrial discovery, failing to present evidence that would have prevented the opposing party’s success on summary judgment and failing to advance plaintiff’s counterclaim seeking damages in Supreme Court or upon appeal. Defendants moved to dismiss the complaint under CPLR 3211 (a) (7) for failure to state a cause of action. Supreme Court (Bruening, J.) partially granted this motion by dismissing two causes of action, but denied the motion as to the two claims of legal malpractice. Defendants appeal.”

“Plaintiff alleged that in the prior case, over the months of December 2013 through April 2014, defendants repeatedly ignored his calls and emails, did not engage in any discovery, canceled depositions and forgot to reschedule the canceled depositions, which subsequently never occurred. Plaintiff alleged that he received one phone call from defendants in April 2014 and no further work was performed on his case until July 2014, when defendants attempted to get an extension to respond to Goodnow’s motion for summary judgment and assorted discovery motions. Further, plaintiff alleged that the only work that defendants performed to oppose Goodnow’s motions occurred on the day immediately preceding the hearing. Plaintiff also alleged that defendants never addressed his counterclaim at the trial level or upon appeal to this Court (see Goodnow Flow Assn. Inc. v Graves, 135 AD3d at 1229 n 1). Lastly, plaintiff alleged that he provided documents to defendants that, if presented to Supreme Court, would have prevented Goodnow’s success on its motion for summary judgment. Plaintiff claims that these failures resulted in the denial of damages for his counterclaim, a loss of enjoyment in using his property, significant legal fees and his ultimate loss on summary judgment, among other things. These allegations are further supported by plaintiff’s affidavit and the attached documents (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]). Accepting these allegations as true, plaintiff adequately stated a cause of action for legal malpractice (see New York State Workers’ Compensation Bd. v Any-Time Home Care Inc., 156 AD3d at 1046; New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 150 AD3d at 1593; NYAHSA Servs., Inc., Self-Ins. Trust v Recco Home Care Servs., Inc., 141 AD3d at 794).”

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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.