This is an attorney v. attorney case in which it is alleged that defendants withdrew from defending plaintiff in a disciplinary action and then engaged in a campaign to sully his name.  Bearing in mind that plaintiff is both an attorney and pro-se, the outcome of this motion to dismiss is not particularly surprising.  As happens in cases between siblings, Savitt v Krinsky
2020 NY Slip Op 31590(U) May 27, 2020 Supreme Court, New York County Docket Number: 154052/2019  Judge: W. Franc Perry is a sad, strange and somewhat terrifying story.

“Savitt avers that he terminated the Krinsky defendants as his attorneys “for cause” on or about January 2016 (Complaint at ¶ 11). The Krinsky defendants assert, however, that they “withdrew” as Savitt’s attorneys on January 15, 2016 and closed his file on February 1, 2016 after which they had no further contact with him (Krinsky 7/22/19 affidavit, ¶ 4) (Doc No. 6).
Savitt asserts that when he terminated the Krinsky defendants in 2016, he hired Michael Gentile to represent him in the Disciplinary Matter. Both Scott and the Krinsky defendants
interfered in his relationship with the newly hired attorney and as a result of their interference, attorney Michael Gentile withdrew from representing him (Savitt 7/31/19 affidavit at ¶¶ 49-54 and 9/30/19 affidavit at ¶ 40 [Doc No. 20]).

Savitt further alleges that in January or February of 2016 Scott and the Krinsky defendants published by email, text, phone, and social media “horrible, vicious, egregious, [and]
false” (Complaint at ¶ 24) defamatory statements claiming that Savitt was “mentally ill” and had a “substance abuse problem” (Complaint at ¶ 68). Savitt contends that these defamatory statements caused personal and professional harm to him (Complaint at ¶¶ 24-25).

Plaintiff additionally states that from May 2015 through July 2019 Krinsky and/or Scott have been: calling, texting, emailing, corresponding and communicating with [his family,
friends, colleagues, client’s] the New York Grievance Committee, likely the Connecticut Grievance committee, informing them that they had diagnosed [him] as being mentally ill, that they had determined that [he has a] substance abuse problem, that [he] was practicing law without a license, that [he] was a liar, that [he] lied in court, that [he] lied to a Judge, that [he] failed to respond to emails/phone calls, that [he] failed to turn over documents/records that were in [his] possession custody and control, that [he] bounced a check from my IOLA
account etc. ”

“The sufficiency of a pleading to state a cause of action depends upon whether there is substantial compliance with CPLR 3013, which requires that “[s]tatements in a pleading shall be
sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” CPLR 3026 also requires that pleadings be liberally construed, and defects ignored if a substantial right of a party is not prejudiced, placing the burden upon the one who attacks a pleading for deficiencies in its allegations to show they are prejudiced. It is further noted that a defamation claim, as is the case here, is subject to the heightened pleading standard of CPlR 3016 (a) which states that “… the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally” (see Rubin v Napoli Bern Ripka Shkolnik, LLP, 151 AD3d 603, 604 [1st Dept 2017]).

In order for the court to conduct its review, the plaintiff must set forth exact words of the  offending statements (Offor v Mercy Med. Ctr., 171 AD3d 502, 502 [1st Dept 2019]; Rubin, 151
AD3d 603, at 604 [1st Dept 2017]). Failure to allege the offending words in haec verba, or the use of paraphrasing, requires dismissal (BCRE 230 Riverside LLC v Fuchs, 59 AD3d 282, 283
[1st Dept 2009]). Moreover, “[a]ny qualification in the pleading thereof by use of the words ‘to the effect’, ‘substantially’, or words of similar import generally renders the complaint defective” (Gardner v Alexander Rent-A-Car, Inc., 28 AD2d 667, 667 [1st Dept 1967]). The plaintiff is further required to provide the “time, place and manner of the purported defamation” (Offor, 171 AD3d 502, at 503, quoting Buxbaum v Castro, 104 AD3d 895, 895 [2d Dept 2013]). The cause of action for defamation, libel and slander per se must be dismissed for failure to state a cause of action. The statements that defendants claimed Savitt was “mentally ill” and had a “substance abuse problem” alone are insufficient to satisfy the strict pleading requirements necessary to state these claims against defendants (CPLR 3016; see, Rubin, 151 AD3d at 604). Indeed, Savitt admits that he does not have possession of any documents to substantiate his claims, and even after his friends stated in their affidavits that they turned over to him all documents proving Scott and the Krinsky defendants’ defamatory statements communicated to them, plaintiff did not refer to those documents in the Complaint, nor did he produce them in the motion papers in support of his claims for defamation, libel and slander per se. Savitt also failed to allege special damages for the alleged per se defamatory statements, rendering the Complaint fatally deficient (Rall v Hellman, 284 AD2d 113, 114 [1st Dept 2001]).

Savitt’s cause of action for negligent infliction of emotion distress is dismissed for failure to allege the requisite essential element of an “extreme and outrageous” conduct by defendants to sustain this cause of action (see, Xenias v Roosevelt Hosp., 180 AD3d 588, 589 [1st Dept 2020]). Similarly, the Complaint fails to set forth the four elements of “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress” to sustain a cause of action for intentional infliction of emotional distress (Howell v New York Post Co., 81 NY2d 115, 121–122 [1993]).”

“Savitt’s motion to amend the Complaint, pursuant to CPLR 3025, is denied. Leave to amend a pleading is freely given absent prejudice or surprise resulting directly from the delay
(CPLR 3025 [b]). “[W]hether the pleading was sufficient to state a cause of action for legal malpractice posed a question of law which could be determined on a motion to dismiss” (see
Rosner v Paley, 65 NY2d 736, 738 1985]). Here, there is no dispute that the purported legal malpractice occurred on or about February 1, 2016, the time Savitt “terminated” and/or the Krinsky defendants “withdrew” their representation of Savitt in the Disciplinary Matter. “An action to recover damages arising from an attorney’s malpractice must be commenced within three years of accrual, and the claim accrues when the malpractice is committed” (see Marzario v Snitow Kanfer Holzer & Millus, LLP 178 AD3d 527, 527 [1st Dept 2019]; CPLR 214 [6] [internal citations omitted]). This action was commenced on April 10, 2019 as reflected in the court’s docket as the date the Summons  and Complaint was filed. The malpractice claim must have been commenced no later than February 1, 2019, three years after the alleged malpractice and therefore the proposed action for legal malpractice is time-barred having commenced this action in April of 2019. Moreover, Savitt failed to state a cause of action for legal malpractice in his proposed amended complaint. “An action for legal malpractice requires proof of three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages” (Excelsior Capitol LLC v. K&L Gates LLP, 138 AD3d 492, 492 [1st Dept 2016]). Additionally, to the extent that the breach of contract claim is alleged and based on the same factual assertions supporting the proposed legal malpractice claim, said cause of action must be dismissed as it is a duplicative claim and/or a claim guised as a breach of contract but is
in fact alleging legal malpractice (see Courtney v McDonald, 176 AD3d 645 [1st Dept 2019]). “

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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.