It is not often that a court allows reargument, states that it misapplied the law, and reverses itself as took place in Orlando v Robinson Brog Leinwand Greene  Genovese & Gluck, P.C.  2021 NY Slip Op 32235(U)
November 9, 2021  Supreme Court, New York County  Docket Number: Index No. 155048/2020  Judge: Phillip Hom. However, plaintiff’s earlier success is now a dismissal.

“A motion for reargument allows a party to demonstrate that the court overlooked or  misapprehended the law or facts pertinent to the original motion (See CPLR 2221[d][2]; see also Delgrosso v 1325 Limited Partnership, 306 AD2d 241 [2d Dept. 2003]); Foley v Roche, 68
AD2d 558 [!81 Dept. 1979] app denied by 56 NY2d 507 [1982]). Its purpose is not to serve as a vehicle to permit the  unsuccessful party to argue once again the very questions previously decided or to present arguments different from those originally presented. (See Gellert & Rodner v Gem Community Management, Inc., 20 AD3d 388 [2d Dept. 2005]; see also McGill v Goldman, 261 AD2d 593 [2d Dept. 1999]; Foley v Roche, supra).

Upon reargument, Gallett LLP’ s motion to dismiss is granted. The Court finds that it misapplied the law relative to the cause of action for legal malpractice. Upon reargument, this Court recalls and vacates the portion of its prior Order denying the branch of the motion dismissing the cause of action for legal malpractice and in its stead finds as follows:

“An action for legal malpractice requires proof of three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages” (Global Bus. Inst. v Rivvkin Radler LLP, IOI AD3d 651,651 [1st Dept 2012]
citation omitted). Courts consistently dismiss legal malpractice claims when a plaintiff fails to plead facts supporting causation (Perkins v Norwick, 257 AD2d 48, 51 [1 st Dept 1999]).

In this case, the Orlandos cannot establish causation. The “but for” Gallett LLP’ s malpractice the court would have ruled in the Orlandos favor cannot be established given Justice Engoron’ s holding in the underlying action. Justice Engoron found that even if the tax maps
were considered it is of no consequence because the Appellate Division held that the “unambiguous and clear Declaration and Offering plan to be definitive and dispositive” on the issue of ownership of the Basement Area. Gallett LLP was also appellate counsel and could not have used the tax maps to defend the underlying action because the tax maps were not part of the
appellate record. Since the Orlandos cannot establish that “but for” Gallett LLP’ s negligence, the disposition in the underlying action would have been different, they fail to establish an essential
element of a legal malpractice claim.

Accordingly, Motion Sequence Number 3 for leave to reargue is granted and upon reargument, the remaining branch of Gallett LLP’ s motion to dismiss the cause of action for legal malpractice is granted and the complaint against Gallett LLP is dismissed in its entirety. “

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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.