How the case was dismissed becomes the most important issue in Finamore v David Ullman, P.C. 2020 NY Slip Op 00105 Decided on January 8, 2020 Appellate Division, Second Department .

“In an action to recover damages for legal malpractice, the plaintiff, Sandro Finamore, in his capacity as executor of the estate of Ione Finamore, deceased, appeals from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated April 20, 2017. The order granted the defendants’ motion (1) pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated January 25, 2017, granting the plaintiff’s unopposed motion for leave to amend the caption and to restore the action to the calendar, and thereupon to deny the plaintiff’s motion, and (2) to dismiss the complaint, and denied the plaintiff’s cross motion for summary judgment on the issue of liability. The appeal brings up for review so much of an order of the same court dated November 16, 2017, as, upon reargument, adhered to the determination in the order dated April 20, 2017 (see CPLR 5517[b]).”

“The defendants contend that the action was marked off the calendar on November 6, 2015, for failure to file a note of issue. However, the record does not contain a 90-day notice demanding the filing of a note of issue, and the defendants acknowledge in their brief on appeal that discovery has yet to be completed. The defendants also contend that the action was subject to dismissal pursuant to CPLR 3404. However, if no note of issue was filed, the action could not have been on the trial calendar, and CPLR 3404 would not apply (see Kapnisakis v Woo, 114 AD3d 729).

The defendants further contend that the plaintiff lacked the capacity to make the prior motion, and that the statute of limitations to commence an action as an estate representative expired before the plaintiff made the prior motion (see CPLR 210[a]). However, the plaintiff had the capacity to commence this action on his mother’s behalf as her attorney-in-fact pursuant to the power of attorney (see Benishai v Epstein, 116 AD3d 726, 726). The statute of limitations does not bar the action, provided that the plaintiff actually had the capacity to sue prior to the expiration of the statute of limitations (see Vastola v Maer, 39 NY2d 1019, 1021; Van der Stegen v Neuss, Hesslein & Co., 270 NY 55, 62-63; cf. Goldberg v Camp Mikan-Recro, 42 NY2d 1029, 1029-1030). Upon his mother’s death, the plaintiff correctly sought substitution of himself in his capacity as administrator of her estate (see CPLR 1021).

Accordingly, the defendants’ arguments in opposition to the plaintiff’s prior motion which was granted in the order dated January 25, 2017, were without merit, and the Supreme Court should have denied the defendants’ motion to vacate that order, which was entered upon their default in opposing the prior motion.”

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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.