CPLR 3211 dismissals are granted more frequently than might be expected,  Dedaj v Berisha  decided on July 15, 2020 Appellate Division, Second Department is almost an exception.  Two items are of interest.  First, the assignment of the legal malpractice claim is affirmed, almost without comment.  Second, the (a)(7) motion is denied almost mechanically.  This is not always the case in legal malpractice litigation.

“We agree with the Supreme Court’s determination denying the defendant’s motion to dismiss the complaint insofar as asserted against it to the extent that the motion was based upon CPLR 3211(a)(1). The documents proffered by the defendant did not utterly refute the plaintiffs’ allegations or conclusively establish that there was no attorney-client relationship between the [*2]defendant and the plaintiffs (see Anderson v Armentano, 139 AD3d at 771; Mawere v Landau, 130 AD3d 986, 990).

We also agree with the Supreme Court’s denial of the defendant’s motion to dismiss the complaint insofar as asserted against it to the extent that the motion was made under CPLR 3211(a)(7). Where, as here, evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 275).

Here, the allegations in the complaint, if true, are sufficient for the plaintiffs to establish a cause of action to recover damages for legal malpractice (see Mawere v Landau, 130 AD3d at 990; see also Sitar v Sitar, 50 AD3d 667, 669-670). The defendant’s evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it (see Lopez v Lozner & Mastropietro, P.C., 166 AD3d 871, 873; see also Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589).

We also agree with the Supreme Court’s determination denying that branch of the defendant’s motion which was based upon CPLR 3211(a)(3) to dismiss the fourth cause of action insofar as asserted against the defendant for lack of standing (see General Obligations Law § 13-101; Greevy v Becker, Isserlis, Sullivan & Kurtz, 240 AD2d 539, 541). That cause of action, asserted by the plaintiff Prel Dedaj, as assignee of Arben Dedaj, alleges that the defendant engaged in legal malpractice with respect to Arben Dedaj.”

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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.