The statute of limitations is approaching, yet the underlying case is not yet finished. How to handle this problem?  Aydiner v Karasik Law Group, P.C.  2021 NY Slip Op 30781(U) March 15, 2021 Supreme Court, Richmond County Docket Number: 151944/2020 Judge: Ralph J. Porzio catalogues the possibilities.

“The key question in the instant Motion is whether Plaintiffs’ legal malpractice cause of action is premature based on Plaintiffs’ pending Order to Show Cause with respect to the Underlying Foreclosure Action. This Court finds that the answer to this question is yes.
In Spitzer v. Newman, the plaintiff brought an action for legal malpractice against his attorney who represented him during loan transactions with borrowers. (See Spitzer v. Newman, 163 AD3d 1026, 1027 [2d Dept 2018]). The Supreme Court denied the attorney’s motion to dismiss and stayed the action pending the resolution of the plaintiff’s underlying action against  the borrowers. (See id.) The Appellate Division, Second Department held that to the extent that
the plaintiff’s action might have been premature since it could not be determined that the defendants’ alleged legal malpractice proximately caused him to sustain damages, the Supreme Court providently exercised its discretion by staying the case instead of dismissing it under CPLR §3211(a)(7). (See id. at 1028).

In the case of Kahan Jewelry Corp v. Rosenfeld, the Supreme Court dismissed a plaintiff’s legal malpractice action, with leave to replead, against defendants based on their representation of plaintiff in a mortgage foreclosure action. (See Kahan Jewelry Corp. v. Rosenfeld, 295 AD2d 261, 261 [1st Dept 2002]). The Appellate Division, First Department upheld the Supreme Court’s decision since the foreclosure action was still pending at the time and the plaintiff therefore had not suffered any actual damages attributable to the alleged malpractice. (See id.). In Parametric Capital Mgt., LLC v. Lacher, the Appellate Division, First Department dismissed the Plaintiff’s legal malpractice claim in part since the subject matter of the services provided by the defendant attorneys was still pending and there was no adverse decision that but for defendants’ alleged negligence, would have been more favorable to plaintiffs. (See Parametric Capital Mgt., LLC v. Lacher, 15 AD3d 301, 302 [1st Dept 2005]).

Here, the Court recognizes that a final Judgment and Sale of Foreclosure was entered against the Plaintiffs in the Underlying Foreclosure Action. The Court has also considered Plaintiffs’ argument that this fact demonstrates that the Underlying Foreclosure Action is not “pending.” However, the Court finds that the relevant issue of whether Defendants’ alleged breach of duty caused Plaintiffs to suffer actual and ascertainable damages is not ripe due to Plaintiffs’ Order to Show Cause, which is still pending.”

“This Court finds that since the elements of causation and damages in Plaintiffs’ legal malpractice cause of action are dependent on the outcome of the Order to Show Cause, such cause of action is premature and must be dismissed with leave to replead under CPLR
§3211(a)(7).”

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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.