As a trial document, Outeda v Asensio  2021 NY Slip Op 51069(U) [73 Misc 3d 136(A)] Decided on November 5, 2021 Appellate Term, Second Department is a little surprising.  It’s an attorney fee trial over $ 10,000.  The decision catalogues what went wrong, some of it easily avoidable.  Read both dissents in the full version.

“Plaintiff, who is an attorney, commenced this action seeking to recover the principal sum of $10,280, which, she alleged in the complaint, is the balance due for legal fees and disbursements based upon two separate retainer agreements she entered into with defendant: the first, to review materials, including “the court’s file,” concerning defendant’s mother’s legal guardian; and the second, to represent defendant in petitioning the Supreme Court, Queens County, pursuant to Mental Hygiene Law article 81, to remove the legal guardian for the person and property of defendant’s mother and to have defendant appointed to serve in that capacity instead. Defendant counterclaimed for $5,000, alleging legal malpractice and a failure to provide services.

At a nonjury trial, plaintiff testified that, after doing “a substantial amount of work,” she [*2]prepared a petition, which she ultimately did not file because she discovered that a petition had already been filed on defendant’s behalf by defendant’s prior attorney. Instead, she filed a notice of appearance. Plaintiff asserted that she then attended court conferences, communicated with the court-appointed guardian for defendant’s mother, and enabled visitation between defendant and her mother. Plaintiff testified that she had agreed to work for an hourly rate of $375. Plaintiff stated the number of hours of work she had performed and billed defendant for, which amount, together with $355 in costs and disbursements, totaled the sum of $15,280. Plaintiff noted that defendant had paid her $5,000, leaving a balance due of $10,280.

Defendant testified that plaintiff had justified her fees by claiming that she was an expert in the field of elder law, when in fact she was not, and asserted that she was entitled to a refund of the money she had paid to plaintiff because plaintiff had done nothing for her.

While no documents were formally admitted into evidence, in its findings dictated on the record after the trial, the Civil Court indicated that it had considered documentary evidence that had been presented by both parties. The court questioned whether plaintiff had proven she was an attorney, but found that even if she was, “she did not establish that she performed the legal services for which she was retained.” The court dismissed the complaint and awarded defendant a judgment of $5,000 on her counterclaim.

It was the attorney plaintiff’s obligation to make a record and move documents into evidence. However, given that the court considered various documents without setting forth on the record the contents of the documents it reviewed or otherwise marking the documents it relied upon in reaching its conclusion, and as the record on appeal is inadequate to allow for proper review without these documents, the judgment must be reversed and the matter remitted to the Civil Court for a new trial.

With respect to the dissent, it should be pointed out that, in findings that appear to have been dictated extemporaneously on the record after the parties left the courtroom, the judge, while pondering the issue, never found that plaintiff was not an admitted attorney. In its findings, the court ultimately stated in part, “Despite this, Ms. Outeda still is counsel and has an obligation to her client, assuming she is an attorney admitted to practice in New York, she had an obligation to her client to proceed and file the petition or once she filed the Notice of Appearance, to file an Order to Show Cause to be relieved as counsel. None of this ever happened.”

Accordingly, the judgment is reversed and the action is remitted to the Civil Court for a new trial.”

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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.