It’s a chicken or the egg issue.  Attorney drafts will.  Will is negligently drafted. Time goes by.  Will proponent dies.  Beneficiary becomes executrix. Estate sues attorney drafter.  Statute of limitations is raised as a defense.  Was the malpractice complete at the will drafting, or was it complete when the negligent bequest becomes active?

Generally speaking, it is the former, as Schor v Spadaro  2020 NY Slip Op 30668(U) February 26, 2020 Supreme Court, Kings County Docket Number: 525714/2018 Judge: Peter P. Sweeney holds:

“The defendant thereafter drafted a Last Will and Testament for the decedent which the decedent executed on May 26. 2011. In her Will, the decedent bequeathed to her son, Frederick Trapanese, the sum of $10.00 and the remainder of her estate, both real and personal, to the plaintiff. There are no allegations in the complaint that the defendant
performed any additional legal services for the decedent or for the plaintiff after the Will was executed.

The decedent died in 2017. After her death, the plaintiff approached a
representative of Marine Cooperative and asked for permission to access the decedent’s cooperative apartment to possibly renovate it and sell the corresponding shares. By letter dated September 8, 2017, Marine Cooperative informed the plaintiff that it had the right of first refusal and that it would not authorize the sale of decedent’s shares. Plaintiff commenced this action on December 21, 2018 alleging causes of action for legal malpractice, breach of contract and breach of fiduciary duty. All three causes of action are based on the following claims: Plaintiff contends since the defendant had an attorney-client relationship with Marine Cooperative and sat on its Board, she should not have undertook to draft the Will for the decedent. She also contends that the defendant committed malpractice by failing to inform the decedent of the conflict, by failing to obtain a waiver of the conflict from the decedent and for failing inform the decedent of the consequences of Marine Cooperative right of first refusal. Plaintiff alleged that she was damaged in the amount of One Million Dollars ($1,000,000.00) but there are no allegations particularizing these damages. ”

“Here, the defendant established that the plaintiffs’ legal malpractice cause of action accrued no later than May 26, 2011, when the decedent executed the Will. As of this date, all the facts necessary to plaintiffs cause of action for legal malpractice had occurred and plaintiff could have obtained relief in court if her claim was determined to be meritorious.

As of May 26, 2011, all the acts and omissions which plaintiff claims constituted defendant’s malpractice had occurred which caused damage to the decedent “at least nominally and at least equivalent to the value of the cost attendant to having a new will
prepared and executed” (Goldberg v. Bosworth, 29 Misc. 2d 1057, 1060, 215 N.Y.S.2d 849, 852). It is irrelevant that neither the decedent nor the plaintiff was aware of defendant’s alleged malpractice or that plaintiff may have suffered additional damages after this date.

Since plaintiffs legal malpractice claim accrued no later than May 26, 2011, the defendant established, prima facie, that the time within which to sue had expired as of December 21, 2018, when the action was commenced. In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations had been tolled, whether an
exception to the limitations period applied or whether the plaintiff actually commenced the action within the applicable limitations period.

Plaintiffs reliance on Estate of Schneider v. Finmann, 15 N.Y.3d 306, 308, 933 N.E.2d 718, 719 is misplaced. The issue in Finmann was whether the personal representative of a decedent’s estate had sufficient privity with decedent’s attorney to bring legal malpractice action for damages resulting from negligent representation of the decedent in estate tax planning. There was no issue in Finnman as to whether the action
was timely commenced. “

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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.