One might engage in a plethora of unacceptable acts, yet not be responsible for legal malpractice.  How can this be?  Might one delay a case for two years and still be safe from a law suit?  Can one arrange for a client to take a 23% interest rate litigation loan, yet still avoid a claim?  The answer is definitely “yes.”

Graham v Law Offs. of Spar & Bernstein, P.C.  2020 NY Slip Op 32563(U) August 7, 2020 Supreme Court, New York County Docket Number: 155996/2019 Judge: W. Franc Perry  is a good example.    “Plaintiff commenced this action on June 17, 2019, setting forth three causes of action. First, Plaintiff alleges that S&B deviated from good and accepted practice by failing to commence Action 1 for two years and by failing to make a motion for summary judgment in a case where there was a presumption of liability because Plaintiff’s vehicle was struck in the rear. Second, Plaintiff alleges that S&B deviated from good and accepted practice by advising her to enter into the funding agreements with Golden Pear. Third, Plaintiff alleges that S&B deviated from good and accepted practice by failing to arbitrate the Plaintiff’s denial of No-Fault benefits, causing her to rely on her private health insurer for her neck surgery, resulting in a $60,000.00 medical lien. ”

“In Plaintiff’s first claim for legal malpractice, she alleges that Defendants deviated from good and accepted practice by failing to file a motion for summary judgment. She alleges that
“[a]s a result of the defendants’ negligence in not obtaining summary judgment at the earliest possible time, the plaintiff lost the benefits of having summary judgment on liability at a sooner time.” (NYSCEF Doc No. 2 at ¶ 41.)

While it is true that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence (Quiros v Hawkins, 180 AD3d 500, 501 [1st Dept 2020]), Plaintiff has failed
to demonstrate a meritorious cause of action for legal malpractice. Plaintiff fails to include any specific factual allegations to support her claim that “but for” the Defendants’ failure to
expeditiously file a motion for summary judgment, she would have achieved a more favorable result. (See Crawford v Himmelstein, 2011 WL 2552326 [Sup Ct, NY County 2011], citing Wexler v Shea & Gould, 211 AD2d 450 [1st Dept 1995].) Rather, Plaintiff merely alleges in a conclusory fashion, that the motion for summary judgment could have been brought at an earlier time and that would have constituted a benefit to her. (Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1185–86, [3d Dept 2015].) Further, the prior action settled for the full amount of the prior defendants’ Geico policy; thus, a more favorable result was not possible. ”

“Geico chose to discontinue Plaintiff’s No-Fault benefits because an independent medical examination caused Geico to determine that no further treatment was necessary. Plaintiff alleges that Defendants’ choice to not arbitrate that decision constitutes legal malpractice. Defendants respond that the choice to not arbitrate was a strategic one, because if they had lost at the arbitration, Plaintiff would have been collaterally estopped from using her injuries as evidence in the forthcoming litigation.

“[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment, where the proper course is open to reasonable doubt. Thus, ‘selection of one among several reasonable courses of action does not constitute malpractice.’” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990], citing Rosner v Paley, 65 NY2d 736, 738 [1985].) “To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a ‘reasonable strategic explanation’ for the alleged negligence.” (Ackerman v Kesselman, 100 AD3d 577, 579 [2d Dept 2012].)

Here, Defendants’ course of action in not arbitrating the denial of benefits was reasonable. Collateral estoppel applies in the context of arbitration decisions regarding the denial of No-Fault benefits. (Acevedo v Holton, 239 AD2d 194 [1st Dept 1997]; Uptodate Medical Services, P.C. v State Farm Mutual Auto. Ins. Co., 23 Misc 3d 42 [2d Dept 2009]; Rozewski v  Krautmann, 151 AD3d 1945 [4th Dept 2017].) Thus, as alleged in the Complaint, Defendants’ decision does not constitute malpractice.”

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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.