MVNY Holdings v Esses Law Group, LLC  2020 NY Slip Op 33380(U) October 15, 2020 Supreme Court, New York County Docket Number: 153853/2019 Judge: Carol R. Edmead ended very badly for plaintiffs.  Not only did they lose a slew of money in the underlying real estate transaction, but they found out when they went to sue the defendant attorneys that they lacked standing!  Judge Edmead explains:

“The lack of an attorney-client relationship bars a legal malpractice claim (Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 539 [1st Dept 2019]). Here, CGR argues that documentary
evidence shows the absence of a relationship between CGR and plaintiffs (CPLR § 3211 [a] [1]). Among other things, CGR has provided the engagement letter and notice of appearance, both of which show that the firm was hired by the Romanoff parties alone and that CGR did not commence its representation of these parties until after the third-party action in Village Green had begun. CGR also shows, through court filings, that plaintiffs in this action engaged in motion practice in Village Green, and that they were represented by other counsel. In response, plaintiffs provide no evidence indicating that they ever communicated with CGR or relied on its guidance.  Moreover,  they do not assert that CGR “either affirmatively led [plaintiffs] to believe that they were acting as [their] attorney[s] or knowingly allowed [them] to proceed under that misconception” (Moran, 32 AD3d at 911). Even if plaintiffs held the subjective belief that CGR was their counsel – and plaintiffs have not shown that they held this belief – that would have been insufficient to establish an attorney-client relationship (see Matter of Segal v Five Star Elec. Corp., 165 AD3d 613, 613 [1st Dept 2018], lv denied 32 NY3d 919 [2019]). For the same reasons, plaintiffs fail to state a cause of action for legal malpractice, thus warranting dismissal under CPLR § 3211 (a) (7) as well (see Seaman, 176 AD3d at 539). Like CGR, Esses has shown that it did not represent plaintiffs in the Village Green litigation – in Esses’ motion, through copies of plaintiffs’ motion to intervene and proposed pleading in Village Green and the affidavit of Leo Esses (see Prudential-Bache Metal Co. v Binder, 121AD2d923, 926 [1st Dept 1986] [“When evidentiary material submitted in support of a complaint demonstrates that a material fact claimed by the plaintiff is not a fact at all, there is no bar to a dismissal of the complaint for failure to state a cause of action.”]; accord Ladera Partners, LLC v Goldberg, Scudieri & Lindenberg, P.C., 157 AD3d 467, 467 [1st Dept 2018]). Defendants also point out that the use of the words “on behalf of’ all ofVGM’s shareholders in the caption means that the claims, in part, are derivative (see Valyrakis v 346 West 48th St. Haus. Devel. Fund Corp., 161Ad3d404, 405 [1st Dept 2018]), and that this does not mean that the plaintiffs, in their own capacities, were clients of defendants in Village Green. Logic also militates against plaintiffs’ argument. If plaintiffs were correct, every unnamed shareholder in every shareholder’s derivative suit could assert a malpractice claim against the named shareholders’ attorneys in those actions.”

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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.