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 duplication between legal malpractice claims and breach of fiduciary duty claims.

“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.)”

“The second issue presented to this Court by Fischbarg’s reargument motion is whether the
prior decision correctly allowed Jonns to proceed with his cause of action for breach of fiduciary
duty. (See Doc. 39 at 1.) His arguments for dismissing the claim for breach of fiduciary duty are
identical to the ones he advanced to dismiss the claim for legal malpractice. (Doc. 51 at 18 (“For
the same reasons … [Jonns’] claim for breach of fiduciary duty is time barred and the continuous
representation doctrine does not apply.”).)

Again, as set forth in the prior decision, “New York law does not provide a single statute
of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations
period depends on the substantive remedy that the plaintiff seeks.” (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009).) As with legal malpractice claims, on a claim for breach of fiduciary duty, “[t]he continuous representation doctrine tolls the running of the statute of limitations on a cause of action against a professional defendant only so long as the defendant continues to represent the plaintiff in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship.” (Transp. Workers Union of Am. Local JOO AFL-CIO v Schwartz, 32 AD3d 710, 713 [1st Dept 2006] (internal quotations omitted).) Therefore, this Court again concludes that Jonns’ claim for breach of fiduciary. duty is timely because the complaint alleged that Fischbarg continued in his efforts to transfer Jonns’ liabilities to Crazy Asylum until at least July of 2016 (see Doc. 41 at 7), and because those efforts clearly pertained to the handling of the 20 I 0 transaction.

Last, this Court finds that the claims for breach of fiduciary duty and legal malpractice are
not duplicative. A claim for breach of fiduciary duty is duplicative when it is “predicated on the
same allegations and seek[s] relief identical to that sought in the malpractice cause of action.”
(Estate of Neve/son v Carro, Spanbock, Kaster & Cuiffo, 230 AD2d 399, 400 [I st Dept 2002).)
As concluded in the prior order, the underlying factual allegations for each cause of action
are slightly different: “The core of Jonns’ claim for breach of fiduciary duty is that Fischbarg
represented both the buyer and the seller during the business transactions over the Charles
Restaurant … whereas the crux of his claim for legal malpractice is that he has become personally
liable for the losses of the business because Fischbarg failed to draft the purchase agreement as
being between Dorsia and an LLC, which would have absolved Jonns of that liability.” (Doc. 46
at 16.) Although Jonns’ complaint included a laundry-list of factual allegations for his legal
malpractice claim-some of which actually pertain to a breach of fiduciary duty, such as the
allegation that Fischbarg “simultaneously represent[ ed] both [ Jonns] and Dorsia” (Doc. 41 at 9)-his complaint has a narrowly tailored set of facts for his breach of fiduciary duty claim (id. at 11-
12). Thus, contrary to Fischbarg’s arguments, the allegations underlying each claim therefore do
not “almost exactly track” (Doc. 51 at 21) one another.

After carefully considering the parties’ arguments, the motion for reargument is denied. “

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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.