I.M.P. Plumbing & Heating Corp. v Munzer & Saunders, LLP  2021 NY Slip Op 06544 Decided on November 23, 2021 Appellate Division, First Department stands for the unremarkable proposition that  it is a departure from good practice if an attorney fails to answer a complaint and fails to seek additional time to answer the complaint.  it also finds that the failure to return $ 200,000 held in escrow when promised can be a breach of contract.  However, these clear findings are well composed and clear.

“Defendants’ failure to interpose answers on behalf of plaintiffs in the A.M. Concrete Action and the A.M. Concrete Proceeding or to seek an extension of time to answer constitutes a breach of the standard of professional care (Shapiro v Butler, 273 AD2d 657, 658 [3d Dept 2000]). Plaintiffs may seek to recover from defendants any legal fees they paid to oppose the resulting contempt motion and to seek vacatur of the default judgment in the A.M. Concrete Proceeding, and to oppose the motion for a default judgment, seek vacatur of the default judgment, and appeal from the order granting a default judgment in the A.M. Concrete Action. In this connection we note that, “[d]amages in a legal malpractice case are designed to make the injured client whole” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007] [internal quotation marks omitted]). Therefore, a legal malpractice “plaintiff’s damages may include litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by the attorney’s wrongful conduct” (id.[internal quotation marks omitted]). Issues of fact exist as to the amounts, if any, that plaintiffs paid for the above noted services.

With respect to defendants’ representation of plaintiffs in two other actions, titled Impagliazzo v Heena Hotel, LLC (NY County index No. 155403/14) and Impagliazzo v Shivbhakti LLC (NY County index No. 652437/14), the only negligence that plaintiffs claim on appeal is defendants’ failure to oppose the motion to dismiss [*2]in the Heena action. However, any negligence on defendants’ part in failing to oppose that motion was not a proximate cause of damages to plaintiffs since the Heena complaint failed to state a cause of action and was refuted by documentary evidence, and plaintiffs do not contend that this was a “remediable defect” (see Dempster v Liotti, 86 AD3d 169, 179-180 [2d Dept 2011]).

Insofar as the breach of contract cause of action is based on alleged overbilling, described as billing for legal services that defendants allegedly performed negligently, it is duplicative of the legal malpractice cause of action (see Courtney v McDonald, 176 AD3d 645, 645-646 [1st Dept 2019]). However, a cause of action for breach of contract is stated by the allegations that defendants retained $200,000 held in escrow for the purchase of real property in violation of an agreement to return the money if the purchase did not go through (see Postiglione v Castro, 119 AD3d 920, 922 [2d Dept 2014]). Contrary to defendants’ contention that the complaint does not allege a breach of contract based on their alleged retention of the $200,000 held in escrow, the breach of contract cause of action incorporates all the previous factual allegations in the complaint. The breach of fiduciary duty cause of action based on defendants’ retention of the funds held in escrow must be dismissed as duplicative of the breach of contract cause of action (see William Kaufman Org. v Graham & James, 269 AD2d 171, 173 [1st Dept 2000]).”

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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.