Ramos v Goldberg, Scudieri & Lindenberg, P.C2020 NY Slip Op 30028(U) January 6, 2020 Supreme Court, New York County Docket Number: 160837/2016 Judge: Anthony Cannataro illustrates how courts review the materials and predict how the case would have come out “but for” the mistakes of the attorneys.  These but for examinations are very deep, and often result in the court undertaking very serious predictions of how other courts would have decided.

“Plaintiff, Raymond Ramos commenced this malpractice action against
defendants, his former attorneys and their law firm, who represented him in two separate cases pertaining to the cooperative apartment he formerly resided in. Defendants now move to dismiss the complaint pursuant to CPLR 3211, for failure to state a cause of action.

The underlying cases dealt with possessory rights to Apartment 4A of the cooperative building located at 4-6 West 105th Street in Manhattan. According to the cooperative’ s records, Patrick Millet was the shareholder of that apartment, but abandoned the apartment in the 1990s, and had since been subletting the premises to various individuals. In 2009 the cooperative commenced a holdover proceeding against the then occupants of the premises, which included plaintiff, to recover possession of the apartment. Plaintiff who had resided in the apartment since sometime in the 1990s, defended that the shares to the apartment were transferred to him in 1995. In 2011, while the holdover proceeding was ongoing, plaintiff commenced a Supreme Court action against the cooperative, seeking a declaration that he was the rightful shareholder of the apartment. ”

“Plaintiff has failed to plead a plausible cause of action for malpractice, as the allegations in the complaint are inherently incredible and/or flatly contradicted by documentary evidence. Contrary to plaintiff’s allegation, it was not obvious that the Court would determine that the action was time-barred. More importantly though, in its decision and order dated December 30, 2013, the Court specifically noted that even if
plaintiff’s claims had not been time-barred, there were numerous deficiencies in plaintiff’s evidence, and sufficient uncontested evidence, for the court to determine that there could not possibly have been a valid sale or transfer of cooperative shares to plaintiff.
Given the weight of the evidence considered by the Court, its decision also would not have changed had plaintiff called Anna Stern an additional witness. The Court found that there was overwhelming evidence such that even crediting plaintiff’s testimony at trial, he was never interviewed by the board, and could not possibly have acquired the shares. Ultimately, Supreme Court found that not only was plaintiff not a shareholder in the cooperative, his attempt to establish rights to the shares was the perpetration of a fraud:

The credible evidence adduced at this trial established that
the plaintiff, with the apparent assistance of his mother, not only disregarded that stated purpose [of the HDFC] but, in
fact, sought to, and did, personally profit from the HDFC by
improperly and deceitfully acquiring access to apartment 4A
and thereafter resided in the unit without paying
maintenance on any regular basis and, when he chose to
reside elsewhere, unlawfully sublet the apartment. He now
seeks to establish legal rights to the apartment with the aid
of the court in order to avoid eviction in the pending
housing court proceeding. The course of conduct exhibited
by the plaintiff will not be countenanced and, most certainly,
the court will not participate with the plaintiff to achieve
that end.

Lastly, as to plaintiff’s contention that his attorneys improperly linked the holdover proceeding to the Supreme Court action, even if a stipulation linking the two cases had not existed, the question of whether plaintiff was subject to eviction in the holdover proceeding necessarily depended upon whether plaintiff was found to be a
shareholder of the cooperative in the Supreme Court action.

As to plaintiff’s breach of fiduciary duty cause of action, that cause of action is duplicative of his legal malpractice cause of action. Therefore his complaint is dismissed in its entirety. ”

 

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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.