Not surprisingly, an unopposed motion to dismiss is often granted.  The lack of opposition sometimes is because Plaintiff is pro-se, sometimes because of law office error.  Here, in Melendez v Renfroe, Driscoll & Foster, LLP  2021 NY Slip Op 31462(U) April 29, 2021 Supreme Court, New York County Docket Number: 157344/2019 Judge: W. Franc Perry the motion is the second of two;  the first motion got one set of attorneys out of the case.

“Here, Plaintiffs only allegations against King are that he failed to demand a jury trial in the Surrogate’s Court action and that he advised Plaintiff to retain the former Defendants as trial counsel. (NYSCEF Doc No. 1, Complaint, at iii! 15, 20.) The rest of the allegations against King and the Law Offices of Paul R. King, P.C. are stated as allegations against King and the former defendants as a whole: namely, that Defendants were negligent in failing to call certain witnesses to the stand and for failing to submit a gift tax return into evidence. (Id. at¶ 33, 35, 41, 42.)

In granting Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster’s motion to dismiss, this court ha; already decided. that Plaintiff failed to set forth a cause of action for legal malpractice because he did not show that “but for” the alleged malpractice, he would have
prevailed in the underlying action. First, this court held that the allegations against the Defendants as a whole were insufficient (see NYSCEF Doc No. 40) and as such those allegations are likewise
insufficient as alleged against King as an individual and as against the Law Offices of Paul R. King P.C.

Further, Plaintiff’s only specific allegation against King, that he was negligent in failing to timely demand a jury trial, is insufficient to allege a claim for legal malpractice. Plaintiff simply cannot prove that “but for” the delayed demand, he would have succeeded in the underlying action,
especially considering the record before the Surrogate’s Court and the court’s findings. (See generally NYSCEF Doc Nos. 51, 53, Transcript and Decision.) Even accepting as true the  allegations asserted against King and Law Offices of Paul R. King, P.C., and considering the documentary evidence, Plaintiff’s complaint fails to state a cause of action for legal malpractice because it does not sufficient allege that Defendants’ negligence was the proximate cause of Plaintiff’ damages”.

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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.