RIVERHEAD, NY    The question of whether the attorneys departed from good practice, allowing Plaintiff to be jailed for contempt in not paying child and spousal support was determined in the summary judgment decision in Rivera v Kerr  2019 NY Slip Op 33047(U) October 11, 2019
Supreme Court, Suffolk County Docket Number: 17736/2015 Judge: Sanford Neil Berland.

” The current action alleges legal malpractice in connection with, among other things. the handling of a prior action concerning and a contempt proceeding arising from the Settlement Agreement and Amendment to Separation Agreement (individually, the “‘Settlement Agreement”
and the ··Amendment”; together. the ‘”Amended Settlement  Agreement”) and the Judgment of Divorce that resolved the matrimonial action between plaintiff and his Conner wife . Plaintiff alleges that he retained the defendants to bring and prosecute a plenary action challenging the Amended Settlement Agreement as defective and unenforceable and to defend him in the contempt proceedings that were brought against him for allegedly violating the Amended Settlement Agreement. The result of those contempt proceedings, which were conducted in Family Court. was that plaintiff was found to have \\illfully failed to pay court-ordered child support and maintenance to his ex-wife and was sentenced to serve six months of incarceration. and plaintiff now claims that the defendants committed legal malpractice by failing to challenge the validity of the Amended Settlement Agreement. For their part. defendants maintain that the Amended Settlement Agreement was not defective; that even if it was. plaintiff, as a matter of law. could not have been saved from being held in contempt: and that the complaint is otherwise without merit.”

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly
appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corp .. 3 NY2d 395, 165 NYS2d 498 [ 1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr .. 64 NY2d 851, 487
NYS2d 316 [ 1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr .. supra). Once such proof has been offered, the burden then shifts to the opposing party. who, in order to defeat the motion for sununary judgment, must proffer evidence in admissible form … and must ‘·show fac ts sufficient to require a trial of any issue of facf’ (CPLR 3212 [b ]; see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court’s function on such a motion is to determine whether issues of fact exist. not to resolve issues of fact or to determine matters of credibility. the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (See Rot/I v Barreto, 289 AD2d 557. 735 NYS2d 197 [2d Dept 2001 ]: O’Neill v Fishkill, 134 AD2d 487. 521 NYS2d 272 [2d Dept 1987]).”

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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.