There are four elements to legal malpractice.  In shorthand, they are departure, proximity, “but for” causation and ascertainable damages. Karambelas v Cohen Goldstein, LLP  2020 NY Slip Op 30994(U) April 2, 2020 Supreme Court, New York County Docket Number: Index No. 15163 demonstrates how the Court will examine the underlying case (sometimes to an extreme degree) in order to determine the “but for” issue. Anecdotally, this is much more extreme in legal malpractice settings than in general litigation.

“On April 17, 2015 – not yet having received its retainer payment from plaintiff, the Firm appeared in court on her behalf At that appearance, the court rendered a decision on a pending motion by plaintiff, made by prior counsel, which sought to compel plaintiffs husband to produce all life insurance policies at the time he brought the divorce action (see, Defendants’ Exh. “V” [transcript of April 17, 2015, appearance]). The court granted that motion and ordered plaintiffs husband to turn over the life insurance policies within 15 days. Plaintiffs
husband did not comply with this order (id). Contrary to a claim made by plaintiff herein that the Firm failed to properly conduct discovery, the court had advised that discovery had closed the day before the Firm even made its first appearance (id). The court, therefore, denied the Firm’s request to continue the deposition of plaintiffs husband, but allowed certain other discovery to take place (id). ”

“Despite the court’s closing of discovery; on June 15, 2015, the Firm, nevertheless, filed a motion by Order to Show Cause, seeking an order: (i) granting interim attorneys’ fees of
$150,000.00, as well as the costs of that motion; (ii) holding plaintiffs husband in contempt for failing to pay monthly maintenance and to turn over the life insurance policies; (iii) granting a judgment for the amount of maintenance in arrears at that time, as well as any amounts that would become due pending the motion; (iv) directing the art auction house Christie’s to release to plaintiff the amounts it was holding as a credit against plaintiffs husband’s support obligations; (v) compelling plaintiffs husband to post security of $250,000.00 or to appoint a receiver to rent out a house owned by plaintiff and her husband, with the rent to be used to pay plaintiffs support; and (vi) compelling plaintiffs husband to tum over additional documents (see, Defendants’ Exh. “J” [June 15, 2015, Motion]). On November 20, 2015, the court denied the request for $150,000.00 in light of plaintiffs receipt of a $500,000.00 line of credit, but did award plaintiff $20,000.00 in connection with the costs of that motion (see, Defendants’ Exh. “K” [November 20, 2015, Order]). The court directed a contempt hearing be held regarding the nonpayment of support and the failure to disclose all life insurance policies (id). The court also found that plaintiffs husband’s arrears were $75,975.83 and directed the entry of a money judgment if payment was not made (id). The court further denied plaintiff’s request for security or a receiver, and the request relating to Christie’s was resolved by a stipulation between the parties (id). ”

“Plaintiff asserts five causes of action against the defendants. However, all of these claims are conclusively refuted by documentary evidence and must be dismissed pursuant to CPLR
321 l(a)(l). A motion to dismiss based on documentary evidence may be granted “where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter oflaw” (Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326 [2002]). Here, the documentary evidence, in the nature of court filings, court orders, and correspondence between the parties, demonstrates that the factual allegations that form the basis of plaintiff’s claims are disproven. As such, the complaint should be dismissed in its entirety. “

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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.