Phillips Nizer LLP v Scollar  2020 NY Slip Op 30791(U) March 13, 2020  Supreme Court, New York County  Docket Number: 154972/2017 Judge: David Benjamin Cohen is an example of how the case within a case doctrine is applied to a legal malpractice counterclaim.  The law firm sued for fees  and the defendant-client counterclaimed for legal malpractice.  The legal malpractice dispute revolved around a custody agreement in a matrimonial case.  As in many such cases, the matrimonial record is replete with stipulations, agreements, rulings and other objective issues that all affect the question of what could the attorney/should the attorney have done?

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge
commonly possessed by a member of the legal profession’; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v Liotti, 86 AD3d 169 [2d Dept 2011] citing Leder v Spiegel, 9 NY3d 836 [2007] cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008]). Here, defendant’s Answer with Counterclaim did not state a cause of action for malpractice. Although the Answer with Counterclaim was replete with conclusory statements alleging that plaintiff committed malpractice, failed to exercise reasonable care and that the quality of the representation was substandard, it failed to articulate any facts that could give rise to an inference of malpractice. Thus, the Answer withCounterclaim failed to state a cause of action for malpractice.

Although when addressing a CPLR 321 l(a)(7) motion, affidavits may be freely accepted by a court to remedy any defects in the complaint (Rovella v. Orofino Realty Co., 40 NY2d 633
[1976]), here, even considering the untiled opposition and the documents in support of this motion, defendant has still failed to state a claim for malpractice. In these documents, defendant supplements the facts relating to plaintiffs alleged malpractice. However, adding the supplemental facts still does not save the counterclaim from dismissal. Defendant discusses that she disagreed with the necessity of some of the work (and the costs associated with such work), that plaintiff was very expensive as compared to the other side and generally that the costs were not in line with the quality of service provided. None of those “facts” even if true can give rise to a claim for malpractice for failing to exercise ordinary reasonable skill. Defendant also discusses two other specific complaints. First, that her intention and desire was that a stipulation for summer visitation schedule be valid for the future. Defendant complains that the stipulation was unenforceable as it did not include 2017, 2018 and 2019 and only clearly included 2016.

Defendant’s allegations are refuted by the documentary evidence of the stipulation which discusses 2016 and sets forth the schedule for that year and then states in plain language “In
2017 and each year thereafter … the parties will alternate the forgoing schedule” and required the parties to make adjustments as necessary to accommodate the child’s schedule. To the extent that said stipulation was not “so-ordered” by the Court and defendant argues that the failure by plaintiff to have it “so-ordered” made the stipulation unenforceable, the stipulation also contains an express provision that the stipulation shall be enforceable even in the absence of the expected so-ordering. In any event, the Answer with Counterclaim was dated April 23. 2017 (filed on June 6, 2017). According to her affidavit the issues with the Summer 2017 occurred after an incident in September 201 7, which had not occurred at the time she wrote the counterclaim. ”


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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.