There are scholarly works (in the form of law review articles) which argue that the courts tilt towards attorneys in legal malpractice cases.  It is logical that such a prejudice might exist.  Legal malpractice (and ethical) rules are written by attorneys, apply to attorneys, are reviewed by attorneys and are acted upon by judge-attorneys.  Any survey of in-house disciplinary or self-disciplining organizations yields the conclusion that self-discipline is less rigorous than discipline by uninvolved outsiders.

So goes Onyenwe v Hamernick  2020 NY Slip Op 04314 [185 AD3d 1044]  July 29, 2020  Appellate Division, Second Department.  While the AD eventually set things right, look at the number of opportunities given the pro-se attorney, and even when Supreme Court sanctioned him, look how a second judge gave the pro-se attorney defendant another out.

“Ordered that the order dated November 28, 2018, is reversed, on the law and in the exercise of discretion, with costs, and the defendant’s motion, inter alia, pursuant to CPLR 5015 (a) (1) to vacate the order dated April 16, 2018, and thereupon to vacate the note of issue is denied.

In 2014, the plaintiff commenced this action against the defendant, inter alia, to recover damages for legal malpractice. Pursuant to a preliminary conference order dated July 6, 2015, the parties were to appear for depositions and to provide disclosure. By notice of motion dated December 11, 2015, the plaintiff moved, inter alia, to strike the defendant’s answer for his willful failure to appear for his deposition. In an order dated January 15, 2016, the Supreme Court resolved the plaintiff’s motion by directing the parties to appear for their depositions on certain dates and to respond to discovery demands. Thereafter, upon additional motions by the plaintiff, inter alia, to strike the defendant’s answer, the court issued two more orders directing, inter alia, the defendant to appear for his deposition. By notice of motion dated January 5, 2018, the plaintiff again moved, inter alia, to strike the defendant’s answer. In an order dated February 2, 2018, the court directed the defendant to appear for his deposition on or before March 9, 2018, and adjourned the plaintiff’s motion to April 16, 2018. The court stated that the issue of preclusion would be addressed on the adjourned date. In an order dated April 16, 2018, the court granted the plaintiff’s unopposed motion, inter alia, to strike the answer.

By order to show cause dated May 31, 2018, the defendant moved, inter alia, pursuant to CPLR 5015 (a) (1) to vacate the order dated April 16, 2018, and thereupon to vacate the note of issue. The plaintiff opposed the motion. In an order dated November 28, 2018, the Supreme Court granted the defendant’s motion, and the plaintiff appeals.

In order to vacate his default in opposing the plaintiff’s motion, inter alia, to strike the answer, the defendant was required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; 210 E. 60 St., LLC v Rahman, 178 AD3d 888, 889 [2019]; Mollica v Ruzza, 151 AD3d 714 [2017]; Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1031 [2011]). Inasmuch as the defendant failed to demonstrate a reasonable excuse for his default, we need not consider whether he offered a potentially meritorious opposition to the motion (see Turko v Daffy’s, Inc., 111 AD3d 615, 617 [2013]).

Accordingly, the Supreme Court should have denied the defendant’s motion, inter alia, pursuant to CPLR 5015 (a) (1) to vacate the order dated April 16, 2018, and thereupon to vacate the note of issue. Chambers, J.P., Maltese, Christopher and Wooten, JJ., concur.”

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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.