In Komolov v Popik  2020 NY Slip Op 30909(U)  April 7, 2020 Supreme Court, New York County Docket Number: Index No. 155100/2017 Judge: Barbara Jaffe determines that both prior Supreme Court judges and Appellate Division panels made fundamental mistakes.  They each inconsistently ignored a written contract.  They each applied incorrect standards to determining motions to dismiss.  They failed to apply statutes correctly.  How can this be?  What does it mean to a claim of legal malpractice?

“It is undisputed that before the 2010 action was dismissed, defendants had been unable to obtain the condominium contract of sale from plaintiffs or their prior counsel, and it is
consistently observed in the pertinent judicial decisions that defendants’ failure to obtain the contract was not their fault. Plaintiffs do not demonstrate otherwise. Therefore, defendants establish that the dismissal in the 2010 action of the cause of action relating to the sale of the condominium did not result from their negligence.

Moreover, as the motion to dismiss was addressed to the sufficiency of the pleadings, the motion court’s decision to dismiss the condominium contract claim based not on a deficiency in pleading but on plaintiffs’ failure to produce the contract as evidence is inexplicable and unsupported by the law.

Nor is there merit to plaintiffs’ claim that defendants should have advanced quasicontractual causes of action in the 2010 action as a cause of action for breach of contract is
barred by the statute of frauds absent the contract, and may not be revived or contravened by the assertion of quasi-contractual claims based on the same contract.
Although defendants thereafter obtained the contract and submitted it in support of their claims in the 2011 action, the motion court apparently overlooked it in dismissing the contract claim in that action. That dismissal was upheld on appeal even though the appellate court had been aware that the contract had been produced in the 2010 action. Although the appellate court agreed that the motion to dismiss was addressed to the pleadings only and not to the merits of the claims, and for that reason reinstated plaintiffs’ causes of action related to the artwork and paintings, it inconsistently determined that the dismissal of the breach of contract claim related to the condominium had been on the merits.

Defendants’ subsequent motion to renew based on the newly discovered contract was denied, the justice deeming herself bound by the appellate decision, even though she believed it
was erroneous. Consequently, defendants demonstrate that the courts, not them, caused the dismissal of the causes of action relating to the condominium sale. Even had defendants moved for leave to renew earlier or appealed the 2010 dismissal, plaintiffs offer no evidence that the dismissal would have been vacated or reversed and/or that they would have then prevailed. Their assertion to the contrary is conclusory and fatally speculative. (See e.g., Brooks v Lewin, 21 AD3d 731 [1st Dept 2005], lv denied 6 NY3d 713 [2006] [speculation on future events insufficient to establish causation in malpractice action]; John P. Tilden, Ltd. v Profeta & Eisenstein, 236 AD3d 292 [1st Dept 1997] [contention that had attorneys filed timely motion for leave to appeal, court would have granted leave and reversed

decision, and retrial would have resulted in more favorable outcome, too speculative to support causation]). Indeed, the motion court in the 2011 action denied plaintiffs summary judgment and found that, had there been an existing breach of contract claim, there were issues of fact as to their entitlement to the balance of the condominium payment.
In any event, plaintiffs ultimately moved, years later, for leave to renew the 2010 decision dismissing their claim and, while the motion court observed that their delay in moving
was a factor in her decision to deny leave, she also ruled that she was bound by the appellate affirmance of the dismissal of the claim.

Moreover, defendants’ decision to file the 2011 action rather than move for leave to renew or appeal the 2010 dismissal constitutes a strategic determination, as the dismissal of most
of the causes of action was based on the insufficiency of allegations pleaded in the complaint, and plaintiffs offer no evidence, expert or otherwise, showing that the strategy is improper or unreasonable. And, as the motion court in the 2011 action suggested that were it not for the erroneous dismissal on appeal of plaintiffs’ breach of contract cause of action, she would have considered it on its merits in that action, plaintiffs’ conclusory allegation that the strategy was incorrect does not constitute actionable malpractice. (M&R Ginsburg, LLC v Segel, Goldman et al., 121AD3d1354 [3d Dept 2014] [defendants established that legal course they chose was among several reasonable ones, which did not constitute malpractice; plaintiffs’ speculation that different strategy would have led to better outcome fatally speculative]).

Defendants therefore demonstrate that their strategy in commencing the 2011 action in lieu of moving to renew or appealing the 2010 dismissal was not the proximate cause of
plaintiffs’ litigation loss of the condominium causes of action, and plaintiffs fail to raise a triable issue in opposition. In light of this result, the parties’ arguments regarding the estoppel effect of the accounting action and judgment need not be considered. ”

 

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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.