Schuster v Miller  2020 NY Slip Op 32291(U) July 13, 2020 Supreme Court, New York County Docket Number: 155658/2019 Judge: Kathryn E. Freed is a strange case that really seems to be about $ 10,000.  Plaintiff participated in an attorney fee request in the Matrimonial part and her affidavit there came back to haunt the proceedings in this legal malpractice case.

“As a first cause of action, plaintiff alleged that Miller advised her that she was withdrawing as counsel and recommended that the Levoritz Firm take over. Plaintiff subsequently
retained the Levoritz Firm for her representation. On October 20, 2016, the parties were to attend a conference and motion argument before Justice Grossman. However, plaintiff alleges that the Levoritz Firm resigned without notice. Plaintiff alleges that she would not have consented to the withdrawal of Miller if she was advised that discovery was ongoing and would not be extended by the court. ”

“As her second cause of action, plaintiff alleged that Miller filed a motion to collect fees from a cash bond that was made by plaintiffs ex-husband and deposited with the court. She maintained that Justice Grossman could have awarded $60,000 in fees, the amount deposited in the bond by her ex-husband, but only awarded $50,000 to the Miller Firm. Plaintiff alleged that no attempt was made to collect the remaining fees and that the $10,000 balance from the posted bond was returned to ex-her husband. Plaintiff requested a return of the retainer fee and the fees paid by her ex-husband’s spouse. ”

“As a third cause of action, plaintiff alleged that defendants were negligent because their withdrawal as the attorney of record resulted in a diminished settlement amount. She claimed that defendants’ request for $50,000, instead of asking for the entire fee claimed, ignored her financial needs….”

“Plaintiff alleges that the Miller Firm was negligent by failing to obtain the full $60,000 in legal fees which was posted in a bond by her ex-husband during the course of the matrimonial action. Plaintiff claims that, although the Miller Firm obtained $50,000, it made no effort to collect the remaining $10,000. In support of their motion to dismiss, defendants contend that, on or about October 27, 2016, two months after the Miller Firm was substituted out of the case and ceased to represent plaintiff, it submitted an Order to Show Cause for court
approval of its fees relating to its representation of plaintiff in the matrimonial underlying action. Defendants argue that, in that application, the Miller Firm requested that the court vacate a prior stay of the fee award and direct payment to them in the amount of $50,000.

Defendants maintain that, in November of 2016, plaintiff submitted an affidavit in support of the fee application wherein she authorized, consented to, and requested that an award of $50,000 of counsel fees be paid directly to the Miller Firm. Plaintiff stated:

“3. I acknowledge that as of today’s date, I owe MZWS [the Miller Firm] approximately $84,440.04 in legal fees and disbursements. 4. I hereby join in the request of MZWS to vacate the bond and authorize, consent and request that the counsel fee award of $50,000 under the Amended Decision and Order dated September 14, 2016 be ordered to be paid directly to MZWS.” Doc. 29.

Defendants contend that, on December 22, 2016, Justice Grossman approved the Miller Firm’s fee application and awarded the Miller Firm $50,000 in counsel fees despite opposition to the same by plaintiffs ex-spouse. Here, plaintiff supported and consented to the Miller Firm’s fee application of $50,000 by submitting an affidavit. At the time plaintiff signed the affidavit, the Miller Firm no longer represented her as counsel. Plaintiff was aware that the total amount of legal fees which she owed to the Miller Firm was $84,440.04. Since the
Miller Firm no longer represented plaintiff at the time the counsel fees application was made, and because plaintiff consented to the amount of counsel fees, that branch of plaintiffs complaint seeking the return of all of the fees she paid to the Miller Firm is without merit. “

Print:
EmailTweetLikeLinkedIn
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.