Plaintiffs, parties to a FTC action, were co-parties with another, whom it seems, was treated differently by the attorneys.  InLabMD, Inc. v Buchanan 2021 NY Slip Op 04084 Decided on June 24, 2021 Appellate Division, First Department we see them strike out.  Dismissal is affirmed across the board.

“Despite their characterization in the amended complaint, plaintiffs’ claims all sound in subornation of perjury in the prior litigation with the FTC. Such claims are not permitted in a subsequent plenary action (Serrante v Moses & Singer LLP, 137 AD3d 697 [1st Dept 2016]).

Plaintiffs’ claim under Judiciary Law § 487 was properly dismissed because the conduct alleged did not take place in a New York court (Shawe v Elting, 161 AD3d 585, 588 [1st Dept 2018]).

Plaintiffs’ claims for negligent and fraudulent omission fail because they did not allege a “near privity” relationship with defendants, who were expressly representing a different party (cf. Millennium Import, LLC v Reed Smith LLP, 104 AD3d 190, 194 [1st Dept 2013]).

Plaintiffs’ claims for tortious interference with the fiduciary relationship fail because they do not establish that their co-plaintiff in the joint representation agreement was a fiduciary, or a partner or joint venturer.

Their claim that defendants interfered with the joint representation agreement fails because any breach occurred before defendants’ alleged actions, and the agreement expressly carves out disclosure of information related to separate legal matters including testimony in other proceedings.

Finally, plaintiffs‘ claim that they could amend the complaint without leave is incorrect. CPLR 3025 allows a plaintiff to amend “once” without leave. Plaintiffs had already done so. Furthermore, their amended complaint did not cure the infirmities referenced above, and thus was futile. No appeal lies from the denial of plaintiffs’ motion to reargue (Crimlis v City of New York, 179 AD3d 575, 576 [2020]).”

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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.