Legal malpractice issues arise in all kinds of settings. in Wikked Entertainment, Inc. v Burbacki  2020 NY Slip Op 32375(U)  July 20, 2020 Supreme Court, New York County Docket Number: 652352/2018 Judge: Andrew Borrok the setting is a claimed hiring of a niece as an attorney to a talent management agency, and the claimed attempted take-over of the agency.  Maria Carey was the sole client, and that relationship ended badly.

“According to the Amended Complaint, in January 2016, Stella Stolper hired her niece, Zarina Burbacki, an attorney licensed to practice in New York, to work for Ms. Stolper’ s management and production company, Wikked Entertainment, Inc. (Wikked) as its in-house counsel and Chief of Staff (Am. Compl., iii! 2-8). Ms. Stolper also helped Ms. Burbacki’s husband, Yonatan Shimrony, get a job in the entertainment industry (id., iJ 10). However, within a few months after Ms. Burbacki began working for Ms. Stolper at Wikked, Ms. Burbacki and Mr. Shimrony created their own, competing companies called YoZa Consulting LLC (Y oZa) and 345 Consulting LLC (345 Consulting), for the purpose of poaching Wikked’s clients and diverting business opportunities for their own benefit (id., iJiJ 13-15). ”

“Ms. Stolper also details allegations concerning Ms. Burbacki’s attempts to wrest control of Ms. Stolper and Wikked’s finances from Ms. Stolper. In one example, she alleges that, acting as Ms. Stolper’s personal attorney, Ms. Burbacki advised Ms. Stolper to set up two trusts in California to safeguard her assets (id., i123). Ms. Burbacki then allegedly set up the trusts and named herself and Mr. Shimrony as the trustees in a scheme designed to give them complete control over Ms. Stolper’s assets (id.). Ms. Stolper asserts that Ms. Burbacki, who was not licensed to practice law in California and had no knowledge of California law, misrepresented the need for the trusts and the benefits of structuring them in such a way as to give Ms. Burbacki and Mr. Shimonry complete control (id.). In another example, Ms. Stolper alleges that Ms. Burbacki convinced Ms. Stolper to put her funds in an attorney escrow account, but after a few months, she stopped providing a formal accounting and withheld $125,000, which Ms. Stolper claims Ms. Burbacki kept for herself (id., iii! 31-37). ”

“Ms. Burbacki’s argument fails because although Ms. Stolper and Ms. Carey released each other and each other’s lawyers (NYSCEF Doc. No. 88, § 4 [emphasis added]), they did not release claims against their own lawyers. The plain meaning of the language of the Mutual Release is that there was no release as to any claims that each party might have against its own lawyers (Elias v Gettry Marcus CPA, P.C., 2018 WL 3117510 at *4 [SD NY, June 25, 2018, 17 Civ. 4066 (ER)] [“The most natural reading of this language is that the parties intended to release each other and those individuals acting as the counterparties’ agents, not that the parties intended to release claims against their own agents.”]). Put another way, Ms. Stolper released any and all claims against Ms. Carey and Ms. Carey’s lawyers, and Ms. Carey released any and all claims against Ms. Stolper and Ms. Stolper’s lawyers, but they did not release any claims that either of them may have as against their own lawyers. For the avoidance, to the extent that Ms. Burbecki argues that there is no carve-out of her from the release, it is of no moment because, for the reasons set forth above, Mr. Stolper’s release language does not cover her or any of her own employees in the first instance. In other words, the absence of a carve-out does not expand the language of the release itself. Accordingly, the Mutual Release is not a bar to Ms. Stolper’s claims in this action. ”

“Here, Ms. Stolper alleges that “[i]n the course of their employment as Ms. Stolper’s and Wikked’s attorneys, Burbacki consistently committed malpractice by either negligently and
improperly performing legal tasks or by negligently failing to perform necessary and required legal tasks” (Am. Compl, iJ 70). Specifically, Ms. Stolper alleges that (i) Ms. Burbacki
intentionally misrepresented her legal knowledge and experience (id., iJ 16), (ii) Ms. Burbacki represented that she was working on securing certain patents and trademarks that were necessary in connection with a skin care product line that Ms. Stolper planned to launch, but that she failed to take the necessary actions to obtain them and, as a result, the product line never launched (id., iii! 18-21), (iii) Ms. Burbacki served as Ms. Stolper’s personal lawyer but failed to provide herwith a written retainer letter as required under New York law (id., iJ 22), (iv) Ms. Burbacki misrepresented her knowledge and understanding of California law and lacked the legal acumen to perform the services that she was entrusted to perform, including advising Ms. Stolper on the benefits of setting up trusts in California and giving total control to Ms. Burbacki and Mr. Shimonry, and (v) Ms. Burbacki mismanaged the attorney escrow account by comingling and then converting Ms. Stolper’s funds (id., iii! 33-35). Taking these allegations as true and according them the benefit of every favorable inference, Ms. Stolper has sufficiently stated a cause of action for legal malpractice. Therefore, the motion to dismiss is denied as it relates to the fourth cause of action.”

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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.