While it is fine and well to identify a departure from good practice, it is similarly necessary to prove all the elements of legal malpractice.  Even more important, it is necessary to follow motion practice and procedures.

Karimian v Karlin  2019 NY Slip Op 05193  Decided on June 27, 2019  Appellate Division, First Department is a good example.

“Plaintiff failed to demonstrate a reasonable excuse for his default in responding to defendants’ motion to dismiss the complaint (CPLR 5015[a][1]; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). His proffered excuse, namely, that he thought his deadline for opposing the motion had been postponed indefinitely pending the court’s decision on his motion to seal the court file, is belied by the record. Plaintiff’s opposition papers were due October 13, 2017, and plaintiff concedes that defendants had refused to consent to a further extension of that deadline. Nevertheless, plaintiff waited until October 13 to request an extension of time, in his order to show cause to seal the court file. The motion court struck that relief when it signed the order to show cause. The other events that plaintiff claims sowed confusion in his mind occurred after the deadline for filing opposition papers had passed. Plaintiff’s status as a self-represented litigant does not alter this analysis (see Matter of Kent v Kent, 29 AD3d 123, 130-31 [1st Dept 2006]). Plaintiff recognized that his opposition papers would not be completed by the deadline, but, instead of submitting incomplete papers, he chose to rely on his optimistic belief that the court would grant his eleventh hour request for an extension of time.

We note that plaintiff also failed to demonstrate a meritorious defense to the motion to dismiss. He failed to show that his legal malpractice claims premised on defendants’ representation of him in the United States District Court for the Southern District of New York were not time-barred (see McCoy v Feinman, 99 NY2d 295, 300, 306 [2002]). He failed to show that his breach of fiduciary duty claims were not time-barred (see Block 2829 Realty Corp. v Community Preserv. Corp., 148 AD3d 567 [1st Dept 2017]; Access Point Med., LLC v Mandell, 106 AD3d 40, 45 [1st Dept 2013]). Although his legal malpractice claims premised on defendants’ representation of him in the United States Court of Appeals for the Second Circuit arguably were timely and not barred by collateral estoppel, plaintiff failed to show that defendants’ alleged failures caused him to lose on that appeal (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). Plaintiff’s cause of action for “Concealment and Failure to Self Report” is not viable because “there is no private right of action against an attorney or law firm for violations of the Code of Professional Responsibility or disciplinary rules” (Weinberg v Sultan, 142 AD3d 767, 769 [1st Dept 2016]).”

 

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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.