The statute of limitations is approaching yet plaintiff has not suffered ascertainable damages.  Potential damages loom, but nothing has actually happened yet.  What to do if your attorney has made a mistake (perhaps a big mistake) yet actual ascertainable damages may yet be speculative?

The short answer is to commence the action and fight over how to proceed.  A stand-still agreement might be reached, a tolling agreement (slightly different) might be reached, or a motion to dismiss must be navigated as in YT Madison, LLC v Sukenik, Segal & Graff, P.C.  2019 NY Slip Op 32112(U)  July 19, 2019  Supreme Court, New York County  Docket Number: 156293/2018 Judge: O. Peter Sherwood.

“In the complaint, plaintiff asserts three causes of action for legal malpractice. breach of
fiduciary duty and unjust enrichment. Each cause of action is based on Plaintiffs allegation
that Defendants negligently permitted the inclusion of a clause in the distribution of ‘Net
Proceeds” section of the Amended Operating Agreement that incorrectly increases from $32
million to $46 billion the amount of an agreed-upon cap on total distribution of Net Proceeds to NP Member. Under the original Operating Agreement. distributions of Net Proceeds in excess of $32 million that would otherwise be payable to NP Member are payable to plaintiff. In paragraph 68 of the complaint, Plaintiff alleges that defendants’ negligence in the drafting of the Amended Operating Agreement used over $14 million in damages. Plaintiff also demands that Defendants reimburse it for all of the legal tees it has paid in connection with the transaction as additional compensation for the damages mused by the allegedly negligent draftsmanship. ”

“Jn an action to recover for legal malpractice. Plaintiff must plead and prove that the attorney
failed  to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that “the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages.” Gallet. Dreyer and Berkey. LLI’ v Basile_ 141 AD 3d 405. 406 (1st Dept 20 I 6) (internal citation omitted). In this case it is undisputed that whether or not Plaintiff will sustain any damages as a result of the alleged malpractice is unknown able at this time. Although damages in a legal malpractice case may include “litigation expenses incurred in an attempt to avoid, minimize or reduce the damage caused by the attorney’s wrongful conduct.”” Rudolph v Shayne Dachs Stanisci, Corker & Sauer, 8 NY 3d 438, 443 (2007) (internal citation omitted), such potential damage cannot save plaintiff’s claim here because the damages that allegedly were proximately caused by the alleged malpractice are unknown.

The motion must be granted because the malpractice claim is premature (see Pudalov v
Brogan. !03 Misc 2d 887. 992, 427 NYS 2d 345, 348 [Sup. Ct.. Nassau Cty 1980] [dismissing
malpractice counterclaim as premature where underlying personal injury action had not yet been reached for trial): and Hallman v Kantor, 22 Misc 3d l 122[A]. 880 NYS 2d 224 [Sup Ct Nassau Cty 2009] holding that as there had been no determination issued by the Surrogate imposing liability against plaintiff no injury could be shown]).

The first cause of action shall be dismissed without prejudice to renew should the Project
yield Net Proceeds in excess of $32 million payable to NP member. “

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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.