With a serious injury, and with the best of intentions, Plaintiff hires a well regarded law firm to obtain compensation.  The law firm sues an incorrect governmental entity, in this case the City of New York rather than the U.S.  Is this legal malpractice?  To answer this question we revert to the four elements of legal malpractice:  departure (suing the wrong party), proximate cause (being unable to sue the correct party because of the passage of time), “but for” causation (discussed below) and ascertainable damages.  Here, dismissal is sought on the basis that plaintiff could not have won the case, and therefore, there is no “but for” causation.  in Postiglione v Sacks & Sacks, LLP  2020 NY Slip Op 31164(U) April 17, 2020
Supreme Court, Kings County Docket Number: Index No. 513779/2019 Judge: Edgar G. Walker, the motion is denied.

“On April 13, 2016, plaintiff sustained physical injuries at a construction site located at Floyd Bennett Field in Brooklyn, New York (Hangar B or the site) when a second-floor concrete floor walkway, upon which he was standing, collapsed. The site is owned by the federal government (government) and managed by the United States National Park Service (NPS). NPS contracted with Nagan Construction (Nagan) to repair storm damage caused by Super Storm Sandy. Nagan, in turn, subcontracted with Global International Windows, LLC (Global) to remove and install windows at Hangar B. Plaintiff was Global=s principal and sole owner. On August 30, 2016, plaintiff commenced an action for personal injury under the Labor Law against Nagan, as the general contractor, and the City of New York (the City), as owner and/or lease holder of the construction site (see Postiglione, et ano. v City of New York, et ano., Sup Ct, Kings County, index No. 515241/16 [the underlying action]). In that action, which is still pending, plaintiffs were initially represented by attorney Weir of the Sacks firm.”

“To recover damages for legal malpractice, a plaintiff must demonstrate that (1) the attorney Afailed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,@ and (2) that the attorney=s action or inaction proximately caused plaintiff to sustain Aactual and ascertainable damages (Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; see also Gorunkati v Baker Sanders, LLC, B AD3d B, 2020 NY Slip Op 00406 [2d Dept 2020]). Proximate cause is established by demonstrating that the plaintiff would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence (see Rudolph, 8 NY3d at 442; Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]). To establish a prima facie case of legal malpractice, a plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action but for the attorney=s negligence (see Grace v Law, 24 NY3d 203, 211 [2014]; Davis, 88 NY2d at 1009-1010). Conclusory allegations of damages or speculative injuries are  insufficient to sustain a legal malpractice action (see Gail v Colon-Sylvain, 151 AD3d 698, 700 [2d Dept 2017]).”

“Thus, plaintiffs may have a viable negligence claim against the government if they show that an NPS or government employee was responsible for plaintiff=s injuries. The bulk of defendants= argument is that Nagan was an independent contractor rather than a government employee, and therefore, the government cannot be held liable for Nagan=s tortuous acts or omissions (see Roditis, 122 F3d at 111). While defendants may be correct that the project specifications and contracts demonstrate that Nagan contractually assumed responsibility for work site operation and safety while construction was pending, plaintiffs= claim is not based solely Nagan=s actions (see Haskin v U.S., 569 Fed Appx 12, 16 [2d Cir 2014]). Here, the government may still be liable for Theresa=s negligence under the FTCA (28 USC 1346 [b]; Haskin, 569 Fed Appx 12; Esgrance v United States, US Dist Ct, SD NY, 17 Civ
8352, Oetken, J., 2018; Jappa v PJR Const. Co., Inc., US Dist Ct, SD NY, 84 Civ 3067, Conner, J., 1985). Indeed, it has been held that one may assume a duty, which initially did not exist, and may be held liable where his or her affirmative action adversely affected that plaintiff and he or she failed to act reasonably (see Arroyo v We Transport,  Inc., 118 AD3d 648, 649 [2d Dept 2014]; Gordon v Muchnik, 180 AD2d 715 [2d Dept 1992]).

Accepting the facts pleaded in the instant complaint as true, construing the complaint liberally, permitting plaintiff=s affidavit to correct any pleading defects and according the plaintiffs every possible favorable inference, the court finds that the allegations, while sparse, state a legal malpractice claim (see CPLR 3211 [a] [7]; Kolchins, 31 NY3d at105-106 [2018]). The allegations that Theresa, in the scope of her employment, directed plaintiff where he could and could not walk and that plaintiff fell in an area that Theresa represented was safe arguably state a negligence claim against her under the FCTA had they been asserted in the underlying action (28 USC 1346 [b]; Esgrance, supra; Jappa v PJR Const. Co., Inc., supra). Therefore, plaintiffs have met their burden of demonstrating that they could have prevailed on a personal injury claim against NPS but for defendants= negligence in suing the City, while permitting the statute of limitations for suing the government to lapse (see Grace, 24 NY3d at 211; Rudolph, 8 NY3d at 442; Davis, 88 NY2d at1009-1010). As a result, the defendants= motion to dismiss the complaint for failure to state a claim is denied.”

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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.