Jean v Chinitz  2018 NY Slip Op 05521 [163 AD3d 497] July 26, 2018
Appellate Division, First Department holds that merely hiding one’s malpractice is not deceit.  Attorneys allowed three discovery demands to go unanswered and suffered dismissal.  There were not exactly forthright with the client.  However, some non-legal malpractice were dismissed.

“In its February 16, 2017 order, the motion court correctly dismissed the first cause of action in the original verified complaint to the extent that it alleged a violation of Judiciary Law § 487, because plaintiff failed to plead the essential elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit (see Judiciary Law § 487; Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]). Accordingly, the portion of the first cause of action in the original verified complaint that alleges a section 487 violation fails to state a cause of action under the statute (see CPLR 3211 [a] [7]). Additionally, plaintiff’s section 487 cause of action lacks the requisite particularity (see CPLR 3016 [b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]).

By the same order, the motion court also correctly dismissed plaintiff’s separate cause of action for punitive damages as pleaded in the original verified complaint. A separate cause of action for punitive damages is not legally cognizable (see Steinberg v Monasch, 85 AD2d 403, 406 [1st Dept 1982]). Rather, punitive damages “are merely an element of the total claim for damages on . . . underlying causes of action,” and a separate cause of action based solely upon them must be dismissed (Greenview Trading Co. v Hershman & Leicher, 108 AD2d 468, 470 [1st Dept 1985]). In any event, the original verified complaint does not allege intentional and malicious treatment of plaintiff or wanton dishonesty suggestive of criminal indifference to civil obligations sufficient to support an award of punitive damages (see Johnson v Proskauer Rose LLP, 129 AD3d 59, 73 [1st Dept 2015]). Indeed, the pleading merely alleges that defendants were trying to conceal their negligence in having allowed plaintiff’s medical malpractice action to be dismissed for noncompliance with discovery orders.

By its July 17, 2017 order, the motion court also correctly dismissed plaintiff’s amended verified complaint, albeit not on the proper grounds. Contrary to the motion court’s determination, the amended verified complaint was not procedurally barred. Defendant’s answer was served and filed on March 7, 2017, and plaintiff’s amended verified complaint was filed on [*2]March 16, 2017, well within the 20-day period within which plaintiff could timely file an amended pleading without leave of court (see CPLR 3025 [a]). Furthermore, in an amended pleading, a plaintiff “may add any cause of action at all, related or not to what the original pleading contained” (see Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:3 at 87, citing Mendoza v Mendoza, 4 Misc 2d 1060, 1061 [Sup Ct, NY County 1947], affd 273 App Div 877 [1st Dept 1948]). Thus, it is of no moment that the amended verified complaint included a section 487 cause of action, whereas defendant’s answer served and filed subsequent to the February 17 order dismissing the section 487 claim included no response to plaintiff’s section 487 allegations.

Plaintiff argues that the amended verified complaint added allegations of intentional deceit on the part of defendants, as manifested in the form of email communications from defendants to plaintiff falsely assuring him that his medical malpractice case was still active when, in fact, it had been dismissed due to defendants’ failure to comply with three discovery orders of the motion court. Plaintiff further alleges that defendants’ deceit injured him by depriving him of the opportunity to take steps to remedy or vacate the dismissal. Plaintiff’s theory presumes that the trial court justice presiding in the medical malpractice action would have vacated the dismissal and reinstated the action had plaintiff moved for such relief. Given the circumstances under which the medical malpractice action was dismissed, however, involving three separate discovery orders for provision of medical authorizations and physician reports, each of which was disregarded by plaintiff’s attorney, it is, at best, purely speculative that the medical malpractice court would have granted such relief. Thus, plaintiff’s claim of injury lacks sufficient support to sustain his claim that defendants’ false email communications were the proximate cause of any injury to him (see Pellegrino v File, 291 AD2d 60, 64 [1st Dept 2002], lv denied 98 NY2d 606 [2002] [dismissing legal malpractice claim where plaintiffs’ allegations did not, on their face, establish that but for their medical malpractice attorney’s conduct in failing to inform them of the dismissal of their medical malpractice action, they would not have sustained the actual ascertainable harm]).”

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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.