Golub v Shalik, Morris & Co., LLP  2019 NY Slip Op 32589(U) September 3, 2019 Supreme Court, New York County Docket Number: 158055/2017
Judge: Barbara Jaffe is worth reading, simply for the long description of all the argument for/against malpractice, continuing representation, damages in a tax case, the application of future estate taxes and how a court reads this all.

The case is about a mistake in a trust set-up.  “Some time before August 2012, ARG’s estate lawyer, Arlene Harris at Arnold & Porter Kaye Scholer LLP (Kaye Scholer) advised ARG to form a Qualified Personal Residence Trust (QPRT, or trust). ARG retained that firm to set up the recommended trust with his son as remainder beneficiary. On August 12, 2012, the firm completed the work in creating the trust. (NYSCEF 85).
On August 16, 2012, ARG transferred to the trust a gift of a 50 percent interest in a property in Southampton, New York. As of August 27, 2012, the entire property was appraised at $9 million. (NYSCEF 86).

By email dated May 9, 2013, Harris sent copies of the deed to the property, the first and final pages of the trust agreement, and an appraisal of the property’s fair market value to Steven Frushtick, ARG’s accountant at defendant Wiener Frushtick & Straub (WPS), stating that “only 50% of the house” had been transferred to the trust. (NYSCEF 79). By email to Harris dated May 20, 2013, Frushtick advised of the need for a discounted appraisal, that without it, the nondiscounted appraisal would be used, and that his tax attorney had informed him that the Internal Revenue Service (IRS) does not countenance the use ofresidential discounts for QPRTs.

In reply, Harris stated that it was ARG’ s decision as to whether he would pay for anotherappraisal to support a discount. ARG asked her how much a new appraisal would cost. Harris responded by asking ifhe wanted her to call about the cost. (NYSCEF 99).”

“To prevail on a claim based on professional malpractice, the plaintiff must establish that but for the alleged malpractice, the plaintiff “would not have sustained some actual ascertainable damages.” (Herbert H Post & Co. v Sidney Bitterman, Inc., 219 AD2d 214, 224 [1st Dept 1996],
quoting Franklin v Winard, 199 AD2d 220, 221 [1st Dept 1993]).

Speculative assertions that the defendant’s conduct caused the plaintiff’s damages do not suffice. (See e.g., Leff v Fulbright & aworski, L.L.P., 78 AD3d 531, 533 [1st Dept 2010], lv denied 17 NY3d 705 [2011] [damages in malpractice case “grossly speculative” where plaintiff could not establish what would have occurred but for defendants’ conduct]; Phillips-Smith Specialty Retail Grp. IL L.P. v Parker Chapin Flattau & Klimpl, LLP, 265 AD2d 208, 210 [1st Dept 1999], lv denied 94 NY2d 759 [2000] [allegations reliant on “hypothetical course of events on which any determination of damages would have to be based, involving the nature and timing of acts by plaintiffs themselves” too speculative to establish malpractice claim]; Sherwood Grp., Inc. v Dornbush, Mensch, Mandelstam & Silverman, 191AD2d292, 294 [1st Dept 1993] [allegations of damages “couched in terms of gross speculations on future events” insufficient]). “

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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.