It’s relatively rare to see an AD opinion which goes into the details of a trial, and makes such certain and minute decisions on evidentiary matters.  Disa Realty, Inc. v Rao  2021 NY Slip Op 05692 Decided on October 20, 2021 Appellate Division, Second Department involves a claim of Judiciary Law § 487 and is that case.  Conclusion first: “We find that the cumulative effect of the Supreme Court’s improvident rulings with respect to the continuance and the admissibility of the defendant’s evidence was to deprive the defendant of a fair trial (see Appleton v 205 E. 17th St., LLC, 101 AD3d at 772-773).”

“Here, the defendant demonstrated that both this action and the 107-07 action arise from similar transactions, concern the same parties, and involve common questions of law and fact (see Rhoe v Reid, 166 AD3d at 920). Indeed, the two actions are “based on substantially identical loan documents” (Disa Realty, Inc. v Rao, 168 AD3d at 1038). Nevertheless, the Supreme Court denied, without reaching its merits, that branch of the defendant’s motion which was to consolidate the actions, on the grounds that the court in the 107-07 action had already denied a similar motion, and a final judgment of foreclosure and sale already had been entered in that action. Under those circumstances, the 107-07 action was not a pending action which could be consolidated with the instant action pursuant to CPLR 602(a) (see IndyMac Bank, F.S.B. v Vincoli, 105 AD3d 704, 707). However, the denial, in the 107-07 action, of the motion to consolidate the two actions, and the judgment of foreclosure and sale entered in that action, were subsequently reversed by this Court (see Disa Realty, Inc. v Rao, 168 AD3d at 1037). Accordingly, in the instant action, that branch of the defendant’s motion which was to consolidate the two actions should not have been denied. In the interest of judicial economy, rather than remit the matter to the Supreme Court for consideration of the motion on the merits, we find that the defendant has established that consolidation is appropriate here, as “it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts” (Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 850; see Rhoe v Reid, 166 AD3d at 921). Contrary to the plaintiff’s contention, it has not demonstrated that consolidation will cause it to suffer any prejudice to a substantial right (see U.S. Bank, N.A. v Westwood, LLC, 115 AD3d 935, 937-938; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d at 850).

“In reviewing a determination made after a nonjury trial, this Court’s power is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing [*3]the witnesses” (US Bank N.A. v Pierre, 189 AD3d 1309, 1310 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Deutsche Bank Natl. Trust Co. v Bucicchia, 193 AD3d 682, 685). “An error in a ruling of the court shall be disregarded if a substantial right of a party is not prejudiced” (CPLR 2002).

The defendant testified that he had paid the plaintiff a total of $805,000 in cash and checks to Amarain and others, namely, relatives and associates of Amarain, some of whom the defendant did not know, for fictional services the defendant never received, all at the behest of Amarain, to be credited toward the mortgages on the subject property and the 107-07 property. He further testified that the purpose of the third-party payments was to enable the plaintiff to avoid paying taxes on the money. Critical to proving this defense were audio recordings, and transcriptions thereof, of conversations between the defendant and Amarain, and between the defendant and Amarain’s employee, Lakhram Indel, regarding the cash payments and checks to third parties and their purpose. The Supreme Court improvidently exercised its discretion multiple times in ruling that certain items of evidence, critical to the defense at issue on trial, were inadmissible on various grounds. “Moreover, the probative value of this evidence was not substantially outweighed by any danger that it would unfairly prejudice the respondent[ ]” (Appleton v 205 E. 17th St., LLC, 101 AD3d 772, 773). First, the court cited no statute or case law when it refused, in this action, to admit any document that had been marked for identification in the 107-07 action, and there does not appear to be any legal basis for such a ruling. Second, the court improvidently exercised its discretion in declining to consider certain documents created by the defendant’s dietary supplement business, bearing written notes to the effect that payment for dietary supplements purchased by Amarain and his wife would be credited toward the mortgages. Mistakenly concluding that the documents constituted medical records, the court returned them to the defendant, because they did not have “a proper authorization of the release of medical records,” and advised the defendant “to be very careful when it comes to people’s medical records.”

The Supreme Court also improvidently exercised its discretion in denying the defendant’s request, by motion filed on February 20, 2018, for “a first single adjournment of trial” so as to have “[t]ime to pay and call Experts crucial in this case for audio and forensic document examiners who submitted affidavits” (see Zysk v Bley, 24 AD3d 757, 758). Specifically, the defendant hired Paul Ginsberg, an audio expert, to “determine the authenticity” of 17 conversation segments that were on the recordings he received from the defendant. Ginsberg had prepared written transcripts of the conversations, transferred the recordings to CDs, and written a report with respect to the recorded evidence, in which he concluded, based on his examination of the recordings, that “[a]ll segments [were] continuous, with no observation of discontinuities,” and “[t]he recorded segments accurately reflect[ed] the words and conversation, as spoken at the time of recording.” The court first denied the defendant’s request for a continuance to arrange for Ginsberg to testify and provide a foundation for the recordings, and then ruled that the recordings were inadmissible, because, although the defendant had testified that they had left his custody and had been in the custody of Ginsberg, Ginsberg “was not [there] to testify as to [the recordings’] authenticity before [the court].”


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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.