Litigators should read Garr Silpe, P.C. v Gorman  2020 NY Slip Op 31517(U)  May 20, 2020  Supreme Court, New York County  Docket Number: Index No. 650247/2017
Judge: Kathryn E. Freed and consider whether how to address the Court on the issue of “fundamental fairness.”

“”Under the doctrine oflaw of the case, the parties or those in privity [with them] are ‘preclud[ed] [from] relitigating an issue decided in an ongoing action where there previously was
a full and fair opportunity to address the issue’ (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177, 1179, 834 NYS2d 736 [3d Dept 2007]).” Matter of Goldstein v
Zabel, 146 AD3d 624, 631 (1st Dept 2017). Although counsel for defendant argues that “[t]he merits of Gorman’ s malpractice claims against [plaintiff] have never been determined, by this Court or by either the Referee or Justice Drager in the [m]atrimonial action” (Doc. 138 at 1), this representation is clearly false, since this Court held in its 7 /29/19 order that Justice Drager “resolved the issue of plaintiff’s alleged legal malpractice in plaintiff’s favor and determined the amount ofreasonable attorneys’ fees owed to defendant.” Docs. 101-103 at 11. Defendant did not move to reargue the 7 /29/19 order and has not perfected her appeal therefrom. Thus, the law of the case doctrine applies and precludes defendant from relitigating the issue of plaintiff’s alleged malpractice herein.  Additionally, as plaintiff asserts, defendant’s proposed counterclaim sounding in breach of contract is duplicative of the legal malpractice claim and must be dismissed as well. See lphas v Smith, 147 AD3d 557 (!81 Dept 2017) citing Mamoon v Dot Net Inc., 135 AD3d 656, 658 (!81 Dept 2016).

Since the proposed claims in defendant’s third amended complaint are insufficient as a matter of law (Cross beat NY v Liirn, 169 AD3d 604 [1st Dept 2019]), the motion to amend the
answer is denied. Further, although not raised by plaintiff, defendant failed to comply with the requirement of CPLR 3025(b) that “the proposed amended … pleading clearly show[] the changes or additions to be made to the pleading.” Thus, this Court denies defendant’s motion on this ground as well.
This Court would be remiss if it did not address certain representations made by defense counsel in support of Gorman’ s motion. Specifically, defendant’s attorney states that the motion is being filed “to right the wrongs that have been committed against [ d]efendant and to reinstitute a semblance of fundamental fairness to these proceedings.” Doc. 111 at par. 2. To the extent that counsel appears to be impugning the integrity of this Court, he should consider himself on notice that such conduct will not be tolerated in the future.”

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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.