Garr Silpe, P.C. v Gorman  2019 NY Slip Op 32248(U)  July 26, 2019  Supreme Court, New York County Docket Number: 650247/2017 Judge: Kathryn E. Freed illustrates the uneasy fit between matrimonial cases and legal malpractice.  Almost overwhelmingly, the legal malpractice comes up as a counterclaim in an attorney-fee case, rather than as a claim.  Often, the legal malpractice case is subject to collateral estopped based upon decisions in the matrimonial action.  In other circumstances the attorney judgment rule comes up.

“In this action by plaintiff law firm Garr Silpe, P.C. (“plaintiff’ or “the firm”) seeking payment for services rendered to defendant prose Robyn S. Gorman (“defendant” or “Gorman”)
plaintiff moves (motion sequence 003), pursuant to CPLR 32 I I (a)(7), to dismiss defendant’s
counterclaims for failure to state a cause of action. Defendant opposes the motion and moves, by order to show cause (“OSC”) (motion sequence 004), for an order, pursuant to CPLR 3 I 24, compelling plaintiff to comply with her discovery demands, or in the alternative, pursuant to CPLR 3126, precluding plaintiff from introducing evidence due to its failure to provide discovery, staying this action or extending her time to respond to plaintiffs motion seeking dismissal of hercounterclaims, and directing plaintiff to return to her all of defendant’s files in plaintiffs possession. Plaintiff also moves (motion sequence 005), pursuant to CPLR 3025, for an order granting her leave to amend her counterclaims. After oral argument, and after a review of the parties’ motion papers and the relevant statutes and case law, the motions are decided as follows. ”

“Defendant’s first counterclaim in her amended complaint, sounding in legal malpractice,
must be dismissed. Doc. 42. Although defendant sets forth a litany of what she claims are
examples of plaintiffs negligence, she fails to allege that, but for plaintiffs negligence, she would have prevailed in the matrimonial action, a defect fatal to a legal malpractice claim. See Robinson & Miller v Sakow, 121 AD3d 562 (P1 Dept 20i4). Additionally, although plaintiff demands damages in an amount no less than $3 million, she fails to allege “actual, ascertainable damages” incurred as a result of plaintiffs alleged negligence. Sapienza v Becker & Poliako.ff, _AD3d_, 2019 NY Slip Op 05218 (P1 Dept, June 27, 2019). Defendant’s counterclaim for breach of contract is dismissed as duplicative of her legal malpractice cause of action. See Kliger-Weiss Infosys/ems. Inc. v Ruskin Moscou Faltischek. P.C., 159 AD3d 683 (2d Dept 2018). The counterclaim for fraud is also dismissed as duplicative of the breach of contract claim. See Sassoon v CDx Diagnostics, Inc. 172 AD3d 617 (pt Dept 2019). Further, defendant failed to plead the fraud claim with the specificity required by CPLR 3016(b ).
Thus, each of defendant’s counterclaims is dismissed. “

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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.