Plaintiff sues attorney for settling a motor vehicle case for $ 1500.  Case runs into trouble for two reasons.  First, there has already been a determination that Plaintiff authorized the settlement through his attorney.  Second, while Plaintiff says he needs a Turkish translator, he repeatedly answered the questions in English.

The court dismissed all claims in Guliyev v Banilov & Assoc., P.C.  2021 NY Slip Op 31728(U) May 17, 2021 Supreme Court, Kings County Docket Number: 516045/2020 Judge: Peter P. Sweeney.

“Plaintiff’s claims arise from an underlying action captioned Shahin Guliyev v. David Han and Gelco Corp. [Index # 515757/2016] where plaintiff sought damages for injuries allegedly sustained in a motor vehicle accident [MVA]. After the MVA action was settled for the sum of $1500.00, plaintiff changed attorneys and plaintiff’s new counsel moved to vacate the settlement. Han and Gelco Corp. then moved to compel enforcement of the settlement. In opposition to the enforcement motion, plaintiff argued that he had not authorized the settlement. The Court directed that a framed issue hearing be conducted to hear and determine whether Shahln Guliyev’s prior counsel, Harlan Wittenstein, of counsel to Nick Banilov, had the authority to enter into the settlement agreement. Therein, plaintiff claimed there was a language barrier and that the offer had not been properly conveyed to him. The Referee determined that plaintiff was not a credible witness and that his prior counsel had the authority to settle the case. Referee Sunshine stated: “The court notes that throughout the hearing, Guliyev answered the questions in English before they were translated to him in Turkish finding that he understands the English language very well. Furthermore, the court notes that Guliyev had no difficulties speaking English during the court proceedings. In fact, he kept responding in English when questioned, “I don’t know”. “ “He said he did not  understand what the Sabrina, the office member stated to him but then testified that she told him that he should come to the office to obtain the $1,500.00 so he clearly understood.”

“Under CPLR 3211[a][5], a cause of action may be dismissed because of collateral estoppel [issue preclusion] and/or res judicata [claim preclusion]. The proponent of the application of the doctrine of collateral estoppel has the burden of establishing an identity of
issues, and the opponent of the application of the doctrine has the burden of establishing an absence of a full and fair opportunity to litigate (see Klapper v. Cypress Hills Cemetery, 184 AD3d 813; Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349; Schwartz v. Public Adm’r
of County of Bronx, 24 NY2d 65, 71). Here, defendant Banilov  submitted a copy of plaintiff’s opposition to the enforcement motion, a copy of the Court’s order determining the enforcement motion, a copy of the Referee’s Report, and the transcript of the framed issue hearing. Banilov’s submissions establish that the question of plaintiff’s consent to the agreement was previously determined. Accordingly, the doctrine of collateral estoppel precludes the plaintiff from relitigating the issue of whether he consented to the settlement (see Karakash v Trakas, 163 AD3d at 789). In opposition, plaintiff failed to show that he lacked the opportunity to litigate the issue in the prior action.

On a motion to dismiss based upon documentary evidence under CPLR §3211[a][1], dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Walker v. Kramer, 63 AD3d 723 quoting
Klein v Gutman, 12 AD3d 417, 418, 784 NYS2d 581 [2004] [citations omitted]; see CPLR 3211[a][1]). Here, the defendants’ documentary evidence including the prior Court’s decision/order, plaintiff’s opposition to the enforcement motion, the Referee’s report, and the
transcript of the framed issue hearing, conclusively establishes as a matter of law a defense to plaintiff’s claim that he did not consent to the settlement in the underlying action (see CPLR § 3211[a][1]). “

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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.