A classic example of a case which probably could not be won.  It was lost because of discovery deficiencies by the attorney.  Woman goes to wax salon, has wax applied to her eyebrows.  Eventually she is diagnosed with herpes and HPV.  Salon used and re-used same sticks, and had a pot of wax which was endlessly re-used for all the patrons.  However, her brows were never tested nor was the wax.  Really no way to prove the wax caused the outbreak, even though it could have logically.  Hence, even though the attorney failed in discovery, no “but for” proximate cause in  Schoenberg v Dankberg  2020 NY Slip Op 33133(U)  September 25, 2020  Supreme Court, New York County  Docket Number: 159404/2016
Judge: Robert D. Kalish.

“Plaintiff retained Defendant Dankberg as her attorney to represent her in the underlying matter of Schoenberg v. Li Xia Gu, No. 013961/2012 (Nassau County) (“the underlying action”), in which she sued a nail salon and its owner and employees (“the underlying defendant salon”) alleging that she sustained personal injuries “as a result of her eyebrows negligently [being] waxed by [the salon]” on October and November of 2009. (Complaint in the underlying action, NYSCEF Doc. No. 111, generally & ¶ 12.) The complaint in the underlying action (“the underlying complaint”) alleged that the salon “negligently, recklessly, and carelessly used a  hazardous contaminated wax.” (Id. ¶ 16.) The underlying complaint further alleged that the wax was contaminated because the salon used the “same vat of wax, which remained heated in a ‘crock pot’ at the facility for all patrons and customers until and after it became unfit for human use.” (Id. ¶ 18.) The underlying complaint further alleged that “[f]resh wooden sticks, like ‘popsicle sticks,’ were used … to apply the wax, but the same sticks were dipped into the same wax used by all patrons, thereby negligently becoming contaminated for further use by humans.” (Id. ¶ 19.) The underlying complaint further alleged that as a result of, inter alia, the salon’s negligence, Plaintiff suffered personal injuries. (See, e.g., id. ¶ 77.) The underlying complaint alleged eleven causes of action and asked for an award of compensatory damages in the amount not less than $1,000,000 for each cause of action plus punitive damages. (See generally id.) ”

“According to Plaintiff’s complaint in the instant legal malpractice action (“the instant complaint”), on August 30, 2013, the defendants in the underlying action filed a motion for an
order, pursuant to CPLR 3126, dismissing the underlying action due to Plaintiff’s failures to comply with her discovery obligations in the underlying action. (Complaint, NYSCEF Doc No
144, ¶ 17.)1

Further, according to the instant complaint and as submitted into the record, in an order dated November 26, 2013, Plaintiff was ordered to serve said discovery responses within 30 days of the date of the order in the underlying action. (Id. ¶ 18.) The order noted that “[i]n the event that the plaintiff fails to comply with the directives of this [o]rder, plaintiff’s complaint shall be dismissed upon the Movant’s submission of an Affirmation of Non-Compliance.” (Id., citing Order dated Nov. 26, 2013, NYSCEF Doc No 133, Ex. A.)

Further, according to the instant complaint, a compliance conference was held in the underlying action on February 27, 2014, where counsel for the underlying defendant informed
the court that “none of the discovery responses listed in the court’s November 26, 2013 order had been provided by [underlying Plaintiff/Plaintiff].” (Id. ¶ 22.) According to the instant complaint, Plaintiff’s attorney Dankberg was not present at said conference, but “instead hired a per diem attorney who was not familiar with [P]laintiff’s case.” (Id. ¶ 23.) ”

“On the first element, Defendant Dankberg fails to present sufficient evidence in admissible form establishing as a matter of law that he acted with the sufficient skill and care of
an ordinary member of the legal profession. While uncontradicted testimony by itself can be sufficient to establish entitlement to summary judgment, it strains credulity that an attorney in Dankberg’s position would not keep one piece of documentation establishing that he notified Plaintiff that he was requesting information that was in the possession of Plaintiff and/or attempted to communicate with Plaintiff or Plaintiff’s father in order to to avoid the underlying action being dismissed pursuant to CPLR 3126. (Cf. Gonzalez v Ellenberg, 5 Misc 3d 1023(A) [Sup Ct 2004] [“[C]onclusory, self-serving statements with no expert or other evidence which would tend to establish, prima facie, that they did not depart from the requisite standard of care is not sufficient to sustain this burden.”].) The Court further notes that Defendant has failed to sufficiently explain why the underlying defendant’s CPLR 3126 motion was unopposed by Dankberg although Dankberg took on the underlying case and he further verified the underlying Plaintiff/Plaintiff’s complaint against the underlying defendant stating that he had reviewed “documents, files and books and records maintained by plaintiff.” (NYSCEF Doc No 111 [Attorney Verification].) Moreover, there is no evidence or any assertion that Dankberg communicated to his client that the action was dismissed pursuant to CPLR 3126, and that he discussed any potential next steps with his client thereafter. (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 434-35 [1st Dept 1990]; cf. Simons v Petrarch LLC, 2017 N.Y. Slip Op. 30457[U], 34 [N.Y. Sup Ct, New York County 2017] [internal citation omitted].)

Nevertheless even if Defendant Dankberg was negligent in failing to respond to the discovery requests which then resulted in the dismissal of the underlying action, this Court finds
that the instant action must be dismissed because Defendant Dankberg has demonstrated that his conduct was not the proximate cause of Plaintiff’s damages, as there would be no reasonable basis for a fact finder in the underlying action to award judgment in favor of Plaintiff. (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015].) “

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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.