Settlements of civil legal actions are a good thing as well as completely necessary.  Sit in the Jury Coordinating Part in Kings County for a day, and you will see 250+ cases being called.  That’s 250 cases every day.  There might be 30 judges available to try a case in Kings County.  Doing the math indicates that the legal system cannot exist without vast amounts of settlements between litigants.

There is no rational justification for the question of whether one is satisfied with the attorney’s work in an in-court settlement allocution.  We suggest that it is there simply to inoculate the attorney.  Smith v V.J Longhi Assoc.  2019 NY Slip Op 32836(U)  September 26, 2019 Supreme Court, New York County Docket Number: 150122/2019 Judge: W. Franc Perry is a prime example.  While there are some very good arguments for dismissal (the case was prosecuted, the correct defendants were in the case, experts were hired and prepared to testify, there was no preclusion of evidence), the court leans on the “satisfaction” of the client.

“Plaintiff retained V.J. Longhi Associates (“Longhi”) in or about November, 2005 to pursue a medical malpractice action on her behalf against Victor Ho, M.D. (“Dr. Ho”), Victory Memorial Hospital (“Victory Hospital”) and Staten Island University Hospital – North (”S.I.Hospital”). At that time, Morris Handler (“Handler”) was associated with Longhi and worked on plaintiffs case. (NYSCEF Doc. Nos. 1, ~~ 2-6, and 33). Plaintiff alleges that defendant Handler did nothing to prepare her case and litigate the action for eight years until Dr. Ho came from Saudi Arabia for his deposition on April 30, 2013. (Id.,~ 9). According to the complaint, plaintiff alleges that she was forced to settle her malpractice action for much less than the action was worth, as a result of the defendants’ professional negligence in failing to properly prepare her case for trial.

In support of their motion seeking to dismiss the complaint for failure to state a claim, defendants provide documentary evidence which they claim refutes the  allegations in the complaint and reveals that plaintiff consented to the settlement on the record in open court. (NYSCEF Doc. Nos. 6 – 20). In addition, defendants submit the affidavit of Morris Handler in support of their motion. (NYSCEF Doc. No. 4). Defendants maintain that the record demonstrates that the allegation that the underlying medical malpractice action was not properly prepared for trial, is belied by the documentary evidence, including the-Bill of Particulars which was served and filed on August 22, 2006. (NYSCEF Doc. Nos. 9, 10). In addition, defendants note that prior to serving the Bill of Particulars, Longhi retained Arnold E. DiJoseph, P.C., a seasoned litigator, to prosecute plaintiffs medical malpractice action. ”

“Defendants rely on the transcript in the underlying action which demonstrates that after the parties agreed to settle the malpractice action, plaintiff who had been present in the courtroom throughout the trial, was allocuted on the record indicating that she had agreed to
settle her case for $300,00. The transcript shows that plaintiff accepted the settlement “of [her] own free will and not under any duress whatsoever” and that she was satisfied with the legal representation in the matter. (NYSCEF Doc. No. 20, pp. 139-140). ”

“Viewing the complaint in the· light most favorable to the plaintiff (see Leon v Martinez,84 NY2d at 87-88), it fails to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying medical malpractice action or that plaintiff would not hav~ incurred any damages (see Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083; Holschauer v
Fisher, 5 AD3d 553, 772 NYS2d 836 [2004]; Rau v Borenkoff, 262 AD2d 388, 691NYS2d140 [1999]). The complaint also fails to sufficiently allege that the subject settlement plaintiff agreed to in open court, was “effectively compelled by the mistakes of counsel” (Tortura v Sullivan
Papain Block McGrath & Cannavo, P. C., 21 AD3d at 1083). ”

“Plaintiff does not set forth any allegations in the complaint to demonstrate that defendants’ actions “forced her” to settle the action. She does not set forth the substance of the alleged misrepresentations by defendants, nor does she set forth how these misrepresentations
compelled her to settle the matter. Moreover, plaintiff stated at the conclusion of the trial, in open court, that she was satisfied with her counsel and wanted to resolve the matter through settlement rather than continue with the trial. (NYSCEF Doc. No. 20, p1p.39-40).”

Print:
EmailTweetLikeLinkedIn
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.