After a verdict in favor of the attorney, ending in dismissal, the Appellate Division, First Department affirmed.  The claimed departure was the failure to call a certain medical expert.  The jury disagreed with Plaintiff and found for defendant in Warren v Silas 2021 NY Slip Op 03930
Decided on June 17, 2021 Appellate Division, First Department.

“Here, the jury’s verdict that defendant did not depart from the requisite standard of care by failing to call surgeon Dr. Barbara Justice as an expert witness at the trial of plaintiff’s medical malpractice action was not utterly irrational or against the weight of the evidence (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The record presents a valid line of reasoning and permissible inferences that could have led the jury to find that before defendant rested his case, he informed the trial court that he intended to call Dr. Justice but could not locate her during the recess. The jury could have reasonably concluded that under the circumstances defendant could not have done more to secure Dr. Justice’s testimony and therefore, in not calling her before resting, he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (Rudolf, 8 NY3d at 442).

This conclusion by the jury was also not against the weight of the evidence (see Cohen, 45 NY2d at 498; CPLR 4404[a]). Plaintiff is not entitled to a new trial on the ground that the trial court admitted defendant’s hearsay testimony about his conversations with Dr. Justice, since that testimony was adduced by plaintiff, who also was permitted to give hearsay testimony about Dr. Justice’s statements. Nor did plaintiff demonstrate that she is entitled to a directed verdict, given the compelling evidence in favor of the defendant in the underlying medical malpractice action (see Warren v New York Presbyt. Hosp., 88 AD3d 591 [1st Dept 2011], lv denied 19 NY3d 806 [2012]). In light of that evidence, plaintiff cannot establish that she would have prevailed “but for” her lawyer’s failure to bring Dr. Justice to the stand (Rudolf, 8 NY3d at 442).”

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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.