Melendez v Renfroe, Driscoll & Foster, LLP  2020 NY Slip Op 32600(U) August 11, 2020 Supreme Court, New York County  Docket Number: 157344/2019 Judge: W. Franc Perry tells a familiar story.  Familiar as in family.  Legal malpractice can take place in any legal setting, whether injury,  inheritance, invention or intellectual settings.  Siblings fighting over ineritance is a frequent trope.  This case is about whether the mother and father favored the two other siblings over plaintiff.

“This legal malpractice action arises out of the Defendants’ representation of Plaintiff in an action before the Surrogate’s Court, County of Suffolk, regarding the disposition of certain assets of Luis Melendez, Plaintiff’s father. Following an adverse decision to Plaintiff issued by the Honorable John M. Czygier, Jr., Plaintiff brings this action alleging malpractice against
Defendants. Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster (collectively, “Foster”) move to dismiss the complaint as against them.”

“At trial, Plaintiff alleged that he began to assume control of Adel over time through sweat equity and controlled M. Brothers since its inception, that his father had signed a stock power transferring 50% of M. Brothers (that belonged to Adelaida at the time) to him on March 21, 2008, and that his parents had all along intended for him to inherit Adel. (NYSCEF Doc No. 31 at 1.) Plaintiff also alleged that, six days before he passed and while suffering from ALS, dementia, cancer, and a broken hip, his father signed a gift tax return indicating that he had transferred ownership of Adel to Plaintiff.

After the 4-day bench trial, Judge Czygier, Jr., ruled in favor of Adelaida, holding that Plaintiff failed to meet his burden in proving that Luis gifted the assets to Plaintiff. In pertinent
part, Judge Czygier, Jr. indicated that to believe Plaintiff’s narrative would require “a suspension of belief,” that he found Plaintiff’s testimony incredible, that Plaintiff forged his father’s signature, and that Plaintiff had fabricated a document arranging a lease between the two asset companies.

Plaintiff alleges that the Defendants were negligent: 1. in failing to subpoena Adelaida or call her to the stand; 2. in failing to call Alan Gellerman, the accountant for the asset companies, to the stand; 3. in failing to call unspecified employees of the asset companies to the stand; and 4. in failing to submit the gift tax return into evidence (collectively, the “alleged malpractice”).”

“Here, Plaintiff fails to set forth a cause of action for legal malpractice because he cannot show that “but for” the alleged malpractice, he would have prevailed in the underlying action. For one, Plaintiff alleges that Foster should have called Adelaida to the stand, specifically to question her about her deposition testimony regarding her and her husband’s intention to give Adel to the Plaintiff in lieu of the $500,000.00 given to his two brothers. (NYSCEF Doc No. 37 at 9-10.) Plaintiff indicates that this is a party admission that should have been brought up at trial. However, the deposition testimony immediately prior to the excerpt cited by Plaintiff in his opposition only indicates that Adelaida’s intention was to bequeath Adel to Plaintiff after both her and her husband had passed away. (NYSCEF Doc No. 26 at 109.) There are no specific factual allegations that any line of questioning of Adelaida would have altered Judge Czygier, Jr.’s ultimate decision on the testamentary intent of Adelaida and her husband.

Further, Judge Czygier, Jr. found the Plaintiff’s testimony regarding his purported ownership of Adel and M. Bros incredible for several reasons. First, Plaintiff admitted to signing
a State Liquor Authority application, a stock purchase agreement, and a resignation letter all on his father’s behalf, which fell far short of meeting the clear and convincing standard required to establish donative intent. Second, Judge Czygier, Jr. specifically discounted the credibility of the gift tax return in question because it was “purportedly executed on October 13, 2013 . . . six days before the decedent died, at a time when, by any measure, his physical and mental condition was deteriorating.” (NYSCEF Doc No. 31 at 21.) There are no specific factual allegations indicating that Gellerman’s testimony would have swayed Judge Czygier, Jr. to believe that the transfer was legitimate, especially considering that the Judge specifically considered the gift tax return and knew the extent of Gellerman’s alleged involvement in its preparation.

In light of the documentary evidence and after accepting as true all facts alleged in the complaint, Plaintiff has failed to show that “but for” the alleged malpractice, he would have
prevailed in the underlying action. The complaint fails to state a cause of action for malpractice because it does not sufficiently allege that Defendants’ negligence was the proximate cause of Plaintiff’s damages. Because Plaintiff has failed to establish proximate cause, dismissal is required. (Leder v Spiegel, 31 AD3d at 268.)”

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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.