Plaintiff attorney loses fee case against pro-se client because he could not show substantial compliance with the matrimonial billing rules of 22 NYCRR 1400, et seq in Swergold v. Weinrib  2021 NY Slip Op 02555
Decided on April 28, 2021Appellate Division, Second Department.

“The plaintiff attorney represented the defendant in a matrimonial action, in which the Supreme Court directed the defendant’s former husband to pay the plaintiff an attorney’s fee in the sum of $100,000. Following the former husband’s failure to pay, the plaintiff commenced the instant action, inter alia, to recover on an account stated, alleging that the defendant failed to pay the [*2]plaintiff’s legal fees in connection with the matrimonial action. In an amended verified answer, the defendant asserted counterclaims, including to recover damages for legal malpractice. The plaintiff moved for summary judgment on the complaint and pursuant to CPLR 3211(a) to dismiss the counterclaims. In an order entered March 2, 2017, the Supreme Court, among other things, denied those branches of the plaintiff’s motion which were for summary judgment on the cause of action to recover on an account stated and pursuant to CPLR 3211(a) to dismiss the defendant’s legal malpractice counterclaim.

Thereafter, the defendant made a motion denominated as a motion in limine, inter alia, to preclude the plaintiff from presenting evidence pertaining to legal fees based upon a violation of 22 NYCRR 1400.3. In an order dated July 11, 2018, the Supreme Court treated the defendant’s motion as a motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, and granted the motion to the extent of requiring the plaintiff to demonstrate his compliance with 22 NYCRR 1400.3. In an order dated December 28, 2018, the court determined that the plaintiff failed to demonstrate his substantial compliance with 22 NYCRR 1400.3 and granted the defendant’s motion to dismiss the complaint.

Contrary to the plaintiff’s contention, the Supreme Court properly granted the defendant’s motion to dismiss the complaint based upon the plaintiff’s failure to demonstrate his substantial compliance with 22 NYCRR 1400.3 (see Montoya v Montoya, 143 AD3d 865Badawi v Alesawy, 135 AD3d 793, 795; Cornish v Eraca-Cornish, 107 AD3d 1322, 1326; Wagman v Wagman, 8 AD3d 263). “

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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.