The statute of limitations has a number of purposes, one of which is to end stale cases, another of which is to quiet old controversies.  Giller v Kate, Nussman, Ellis Farhi & Earle, LLP
2019 NY Slip Op 32301(U) July 31, 2019  Supreme Court, New York County  Docket Number: 156885/2018 Judge: W. Franc Perry illustrates how a claim of fraudulent concealment affects a statute of limitations defense.

“This legal malpractice’ action arises out of Kates Nussman’s representation of Giller in an
underlying consolidated tort action by Giller and non-party Richard Ginsberg {“Ginsberg”)
against Daniel Gittleman (“Gittleman”), Patricia Gittleman, and HP, before the United States
District Court, District of New Jersey, under Claim Action Nos. 1 :Ol~cv-5698 and 1 :02-cv-2247
(SSB) (the “Gittleman Action”). In the Gittleman Action, Giller, as the former owner of a 10%
interest in Raid Power, Inc. (“Raid”), alleged that in 1995, Gittleman misrepresented to Giller
and Ginsberg that he was winding up Raid, and offered to return th~ amounts paid by Giller and Ginsberg for their respective ownership stake’s in Raid. At the time, Ginsberg and Gittleman each owned a 45% stake in Raid. Instead of winding up Raid, Gittleman continued the business and eventually sold Raid to HP for three-hundred and twenty million dollars (Complaint, irir 8-15).

Initially, Kates Nussman and Ginsberg agreed to share the costs and fees regarding
depositions and the retention of experts. As litigation continued, it became apparent during settlement conferences that Giller’s and Ginsberg’s interests were no longer aligned. Moreover, Kates Nussman had failed to honor the parties’ letter agreement to share deposition costs and expert fees. As a result, Ginsberg ceased coordinating with Giller and commenced private negotiations that resulted in a settlement agreement between Ginsberg, Gittleman and HP on December 5, 2014. Given Plaintiffs failure to share costs and fees, after the settlement agreement, Ginsberg refused to provide Kates Nussman with access to the reports and testimony of his experts (see Letters, NYSCEF Doc. Nos. 17, 18, 19). ”

“In opposition, Giller argues that Kates Nussman is barred from asserted a defense based
on the statute of limitations under the doctrine of equitable estoppel. “In order for equitable
estoppel to apply, plaintiffs bear the burden in showing: (1) plaintiffs were induced by fraud,
misrepresentations or deception to refrain from filing a timely action; and (2) plaintiffs
reasonably relied on defendant’s misrepresentations” (MB! Intern. Holdings Inc. v Barclays
Bank PLC, 151AD3d108, 117 [1st Dept 2017], Iv to appeal denied, 29 NY3d 919 [2017]
[internal quotations and citation omitted]). However, “the doctrine of equitable estoppel ‘will not toll a limitations statute where plaintiffs possessed timely knowleqge sufficient to have placed them under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable statute oflimitations”‘ (Brean Murray; Carret & Co. v Morrison & Foerster LEP, 165 AD3d 582, 582 [1st Dept 2018], quoting Rite Aid Corp. v. Grass, 48 A.D.3d 363, 364-365 [1st Dept. 2008]; see also Simcuski v Saeli, 44 NY2d 442, 450 [1978] [“due diligence on the part of the plaintiff in bringing his action is an essential element for the applicability of the doctrine of equitable estoppel”]).

Here, the alleged malpractice occurred between 2002 and 2005 when Kates Nussman  allegedly cajoled Giller to accept a low settlement offer by concealing the deteriorating health of Giller’s lead attomey,_Mr. Nashe!, and that Ginsberg had settled his claims against Gittleman and HP and would no longer cooperate with Kates Nussman or permit Kates Nussman to review or rely on the evidence and experts that Ginsberg had paid for. Giller’s conceded contemporary belief that the settlement offer was woefully inadequate, his knowledge that he was never asked to pay for experts, and KatesNussman’s refusal to continue to negotiate on Giller’s behalf, put Giller on notice to inquire further within the statute of limitations period. Accordingly, the doctrine of equitable estoppel does not save Giller’s untimely legal malpractice claim.”

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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.