Judge Billings untangles a complicated web of courts, causes and conclusions in Alphas v Smith  2019 NY Slip Op 33427(U) November 15, 2019 Supreme Court, New York County Docket Number: 155790/2015.  Questions of when the representation began, who has privity, what was the scope of the representation and did other attorneys cut off the liability arc all are decided.

I. THE FOURTH AMENDED COMPLAINT
I The current complaint alleges that plaintiffs retained defendants on or about September 1, 2012, to represent plaintiffs Alphas and Alphas Company of NY and a separate corporation, Alphas Company, Inc., in several pending actions. Alphas is currently the sole shareholder of Alphas Company of NY and a 50% shareholder with his brother, Yanni Alphas, of Alphas Company, Inc. based im Boston, Massachusetts.

Plaintiffs claim they retained defendants’ legal services after being served with a complaint in an underlying action against Alphas Company of NY seeking $11,450.04 for its delinquent contributions to its employees’ union Pension Fund. A letter dated September 20, 2012, from the Pension Fund to Yanni Alphas, theniChief Executive Officer of Alphas Company of NY, notified it of the Pension Fund’s determination that it had ceased contributions to the Pension Fund, thus effecting its withdrawal from the Pension Fund for that year and incurring a liability of $983,579.74 to the Pension Fund. The withdrawal letter further notified Alphas Company of NY that this liability was payable in 44 quarterly installments, that Alphas Company of NY was entitled within 90 days to request the Pension Fund to review its d$termination, and that the final avenue of relief was arbitration. 29 U.S.C. § ·1399(b). The Pension Fund sent a copy of this letter to Smith.”

“Second, while plaintiffs stipulate that the Letter of Engagement is authenticated and admissible for the purpose of determining defendants’ motion, the letter’s execution date does not bar Alphas’s legal malpractice claim against defendants either. The execution date may commence the attorney-client relationship, but is not the single determinative factor in evaluating whether Alphas may claim legal malpractice against defendants. Later dates during the attorney-client relationship determine when his legal malpractice claim accrued: most
significantly, when the malpractice and injury occurred. Johnson ,
v. Proskauer Rose LLP, 129 A.D.3d 5~, 67 (1st Dep’t 2015); Cabrera v. Collazo, 115 A.D.3d 147, 150 (1st Dep’t 2014); Goldman v. Akin Gump Strauss Hauer & Feld LLP, 46 A.D.3d 481, 481 (1st Dep’t 2007). Plaintiffs allege that defendants’ malpractice occurred well into 2013, when Alphas undisputedly was the sole shareholder of Alphas Company of NY. Because there was an attorney-Client relationship between Alphas and defendants based on Alphas’s sole ownership of Alphas Company of NY when the alleged malpractice occurred, Alphas may pursue an individual claim regardless whether he was less than a 100% owner in 2012. Johnson v. Proskauer Rose LLP, 129 A.D.3 at 67; Cabrera v.
Collazo, 115 A.D.3d at 150; Goldman v. Akin Gump Strauss Hauer &
Feld LLP, 46 A.D.3d at 481.

For all these reasons, defendants’ documentary evidence does
not resolve the issue whether Alphas.maintained an attorney client relationship with defendants when plaintiffs’ legal malpractice accrued, as a matter of law, and Alphas at minimum raises a factual issue of such a relationship. Therefore the court denies’ defendants’ motion to dismiss Alphas’s action based on documentary evidence. C.P.L.R. § 3211(a) (1).”

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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.