Any trial lawyer will be able to decipher the point of a difference between a pre-answer motion to dismiss and a motion for summary judgment.  In Caso v Miranda Sambursky Slone Sklarin Verveniotis LLP  2020 NY Slip Op 01384 Decided on February 27, 2020 Appellate Division, First Department permitted dismissal on summary judgment in a case where it denied dismissal on the pre-answer motion.  The facts remain exactly the same.

“In this legal malpractice action, plaintiff, defendants’ former client, contends that “but for” defendants’ negligence he would have obtained a favorable jury verdict in his underlying personal injury action against the owner and driver of a truck (Caso v Santos, et al., index No. 301817/2008 [Supreme Ct., Bx Cty]). Plaintiff was struck by a commercial garbage truck and badly injured. The accident was a hit and run. Plaintiff could not describe the vehicle that struck him, and his case largely relied on the testimony of the sole eyewitness, Ted Arenas. Arenas called 911 when the accident occurred. A New York City police detective spoke to Arenas during the course of his investigation of the accident. Defendants’ driver was arrested but the charges were dropped shortly thereafter, and no criminal action was commenced. The detective, however, prepared investigative reports, which include statements that Arenas made to him. One investigative report contains a statement attributed to Arenas that he had “observed a dark green colored garbage truck” and that it was not a dump truck “as he stated in his 911 call.” Another statement attributable to Arenas is that the truck had a “flat front.” None of these investigative reports were prepared by Arenas or signed by him.

Statements from these investigative reports were read aloud, line by line, to Arenas at his deposition in the personal injury action. Even after hearing the information from the investigative reports, Arenas denied that he recalled describing the truck as having a flat front. Instead, he recalled that the truck had an engine in front. Arenas even made a drawing reflecting a roundish front hood on the truck. Arena did not recall seeing any identifying markings on the truck, or license plate, nor did he see the driver.

Before trial, Arenas met with counsel for both plaintiff and defendants. During that meeting, Arenas stated that he recalled the front of the truck as being bullnosed. While he was not 100% sure, even after one of the investigative reports was read to him where he described the front of the truck as flat, he drew a picture of the truck with a bullnose.

At trial, Arenas provided conflicting and inconsistent testimony about the truck, alternatively describing it as a dump truck and also a garbage truck, but once again he testified that the truck had a rounded “bullnose,” with the engine up front. Such testimony did not match the description of the truck owned by the defendants and allegedly involved in the underlying accident, which had a flat front. Santos, defendants’ driver testified that he had not been [*2]involved in any accident and had not hit anybody with his truck. The jury returned a verdict for the defendants in the underlying personal injury action.

Plaintiff’s contention in this legal malpractice action is that Arenas should have been better “prepared” for his deposition in the underlying personal injury action, so he could “remember” the statements he made to the detective. Plaintiff claims that, had defendants not been negligent, there would have been a plaintiff’s verdict. He claims that Arenas’s testimony damaged his case and prevented him from prevailing.

“[M]ere speculation of a loss resulting from an attorney’s alleged omissions . . . is insufficient to sustain a claim” for legal malpractice” (Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 405-406 [1st Dept 2016] [internal quotation marks omitted]; Geller v Harris, 258 AD2d 421 [1st Dept 1999]). Plaintiff’s assertion that, had Arenas been better prepared, the jury would have returned a favorable verdict is pure speculation (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007]; Bookwood v Alston & Bird, LLC, 146 AD3d 662 [1st Dept 2017]. Defendants met their burden of showing that plaintiff cannot establish causation, in that plaintiff cannot prove that it would have prevailed in the underlying action “but for” defendant’s alleged negligence in preparing Arenas for his deposition (see Rudolf v Shayne, 8 NY3d 438 at 442).

Although there are issues of fact regarding whether defendants may have departed from the applicable standard of care, any claim that the jury would have reached a different result in the personal injury action is wholly speculative. First, it is wholly speculative that Arenas would have testified to a different description of the truck either at his deposition or at trial had he been shown the investigative reports. Although the investigative reports were read to him line by line at his deposition, his description of the truck did not change and he adhered to his belief, that the front of the truck he saw strike and run over plaintiff was bullnosed. Even if Arenas’s statement in support of plaintiff’s motion in this case is accurate, that he would have testified differently had he been differently prepared, this, at best, creates an issue of fact about what he would have said at trial. It does not eliminate speculation about what the jury’s verdict would have been, given that Arenas’s description of the truck otherwise lacked detail, and the absence of any additional proof identifying defendants’ truck and driver as being involved in underlying accident.

Contrary to plaintiff’s argument, our prior decision in this case decided under the more liberal standards applicable to motions to dismiss (150 AD3d 422 [1st Dept 2017]) is not inconsistent with this summary judgment adjudication (see Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467 [1st Dept 1987]). Consequently, defendants’ motion for summary judgment should have been granted and the case dismissed.”

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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.