A frequently repeated principle of legal malpractice is that the “but for” portion of the case is really where all arguments center.  Few legal malpractice cases are brought where a departure by the attorney is not glaring.  The more perplexing question is what would have happened if the attorney had not made a mistake.  in Karambelas v Law Off. of Mark S. Helweil  2020 NY Slip Op 30974(U) April 21, 2020 Supreme Court, New York County Docket Number: Index No. 150591/2019 Judge: Louis L. Nock we see what happens to a legal malpractice case based upon whether the wife in a divorce case would have done better in divorce or in surrogates’ court when the husband dies just before judgment in the divorce case was entered.  In the earlier Karambelas case, we saw what happened with the prior attorneys during the divorce.

“This malpractice action arises out of the Firm’s representation of Ms. Karambelas duringthe latter portions of a divorce action titled Kaplan v Karambelas (No. 401958/2013 [Sup Ct NY
County]) which was ultimately abated upon the unfortunate event of Ms. Karambelas’ husband’s death. The Firm had been the fourth law firm hired by Ms. Karambelas to represent her in that divorce action. The Firm asserts on this motion that, since her husband died, Ms. Karambelas received a jointly owned Park Avenue apartment, appraised at $4.75 million in the divorce action. The Firm further asserts that Ms. Karambelas has also received $1.7 million in life insurance proceeds from her late husband’s policy.”

“The overarching gist of the motion rests on the Firm’s prediction concerning the future outcome of a pending Surrogate’s Court proceeding involving the probate of the late Mr.
Kaplan’s estate (Matter of Estate of Peter M. Kaplan, a/k/a Peter Mark Kaplan, Peter C. Kaplan, and Peter Kaplan, No. 2018-3342/B [Surr Ct NY County]). The Firm asserts that the estate
includes a residence in Water Mill, New York, appraised during the divorce action at $4.75 million, as well as jewelry and artwork valued in excess of $1 million. The Firm’s theory
underlying this motion is, in large part, distilled in paragraph 8 of the moving affirmation of its counsel, who predicts that “Karambelas will ultimately receive [through the probate of the Kaplan Estate] substantially more than she would have received in the divorce action under the equitable distribution laws of the State of New York – so she nonetheless will receive all the money he allegedly would have been obligated to pay for legal fees and maintenance anyway – and much more” (NYSCEF Doc. No. 4 ¶ 8).

In fact, the Firm’s said factual prediction permeates its entire motion (see, NYSCEF Doc. No. 4 ¶¶ 19 [“As a result of her husband’s death and the abated divorce action, Karambelas, as
his wife, will likely be left the entirety of his estate . . ., obtained full ownership of the jointly owned Park Avenue apartment and has received life insurance proceeds of $1.7 million . . . .
This would include the same money from which she allegedly would have received payment from for her legal fees and expenses.”], 27 [“it is anticipated that Karambelas will inherit significantly more money as a result of her husband’s death than she alleges as damages, and would encompass any payments allegedly not received while her husband was alive”]).
In opposition to the motion, counsel for Ms. Karambelas asserts that the Firm is overplaying Ms. Karambelas’ hand in the probate proceeding. First, he asserts that the only estate asset worth speaking of is the late Mr. Kaplan’s residence in Watermill, New York, “of which [Ms. Karambelas] would presumably have been awarded at least half in the divorce
action” (NYSCEF Doc. No. 12 ¶ 44). Said counsel further asserts, in contradistinction to the Firm’s counsel, that “[t]he estate does not include the artwork and jewelry referenced in the
attorney’s affirmation submitted in support of the motion at bar” (id., ¶ 46). Said counsel then proceeds to calculate what he believes are the debts of the Kaplan Estate, estimating them at “almost $3 million” (id., ¶ 47). Notably, said counsel further discounts the Firm’s optimistic projections of Ms. Karabelas’ probate take-away by informing the court of “the simple fact that [Mr. Kaplan’s] son is also a beneficiary and co-administrator of [Mr. Kaplan’s] estate,” concluding – or rather, counter-predicting – that Ms. Karambelas “may, at best, recover only half of her husband’s estate, to the extent that any assets remain after all of the estate’s debts have been paid” (id., ¶ 50). ”

“Based on the mutual primacy of the probate proceeding in the eyes of all the parties hereto, as manifested by their own submissions, this court concurs that the most effective
exercise of discretion at this time is to grant the Firm’s alternative request for a stay of this action pending a final resolution of the pending Surrogate’s Court proceeding. Only at that seminal point in time can the parties be able to regroup and re-assess what they currently view as the ostensible merits of their respective claims and defenses in this ancillary malpractice action and, equally importantly, whether it would be worth their whiles in doing so altogether.”

 

 

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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.