People v Austin  2021 NY Slip Op 30276(U) January 29, 2021 Supreme Court, New York County Docket Number: 451533/2019
Judge: O. Peter Sherwood is the unusual government case in which a legal malpractice issue is inserted.  Here one defendant cross-claims against another defendant for legal malpractice.

“In 2014. the Attorney General’s office (‘”AG”) began an investigation of the Lutheran All Faiths Cemetery (the “Cemetery”). As a result of the investigation, the AG commenced this
action seeking remedial and injunctive relief against the member of Cemetery’s Board of Directors for breach of fiduciary duty to the Cemetery (Nunberg Aff. ii 5 [Doc. No. 106]). Mordente is a director of the Cemetery and his law fim1, Mordentr Law Firm LI .C, has
been General Counsel to the Cemcte1y since 1990 (id. ir 6). Defendant Lodato joined the Cemetery’s Board in 2004 (id. ii 8). In an Amended Answer, Lodato also alleged cross-claims
against Mordente sounding in legal malpractice. contribution, and subrogation (Mordente Aff.  6 [Doc. No. 107]). He alleges that Mordente committed legal malpractice arising from his role in drafting defendant Daniel Austin, Sr.’s (“Austin, Sr.”) employment contract with the Ccmete1y, distributing assets of a Non-Qualified Deferred Compensation Fund (the “Rabbi Trust”), and
understating the Cemetery’s contribution to the Rabbi Trust (id if 19: Amended Answer 19 Doc. No.  109). Mordente responds that he has never been retained, performed work for, or represented Lodato in an individual capacity or in his capacity as a director of the Cemetery (Mordente Aff iii! 8-12). Defendant Lodato did not submit opposition to this motion.”

“Lodato’ s legal malpractice claim against Mordente must be dismissed. First, an attoney client relationship did not exist between Mordente and Lodato. The only retainer agreement on
record here is one between Mordent’s law firm and the Cemetery. That agreement makes clear that the only client taken on was the Cemetery itself (Mordente Aff., Ex. C at 1 ). Further, New York courts have held that a corporation’s attorney represents only the corporate entity, not its officers or directors (Campbell v McKeon, 75 AD3d 479, 480-481 [1st Dept 20 I OJ). Lodato, having failed to oppose Mordent’s motion, also fails to provide any evidence that an attoney client relationship existed between him and the Mordente firm. Lodato’s Amended Answer alleges that Mordente represented the Lodato family in connection with a mortgage transaction
between the family and the Cemetery (Amended Answer,, 4-7). Mordente rebuts these allegations, demonstrating that the Closing Statement and Closing Attendance Sheets for the mortgage transaction list Vincent Lodato as having his own counsel whereas the Mordente firm represented the Cemetery (Mordente Aff., Exs. G, H [Doc. Nos. 114~115]). Lodato also cannot establish a “near privity” relationship with the Mordente firm as his Answer merely pleads such a relationship exists without offering any specific examples of Lodato ‘s reliance on Mordente’s conduct or statements. Moreover, Mordente has met his burden under CPLR 321 l(a)(5) to show
that the time in which to sue has expired (see [<;/and ADC. Inc. v Baldassano ArchitecturalGroup. P. C. 49 AD3d 815, 816 f2008]). Consequently, the cross-claim for legal malpractice against Mordente must be dismissed for failure to state a claim and for failure to assert the claim within the applicable statute of limitations. “

Email this postTweet this postLike this postShare this post on LinkedIn
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.