Wilson v Tully Rinckey PLLC  2021 NY Slip Op 07341  Decided on December 23, 2021 Appellate Division, Third Department is a fairly straight-forward affirmance of Supreme Court’s denial of a CPLR 3211 motion.    Here are the simple reasons why the legal malpractice claims were not dismissed.  Plaintiff sued for employment discrimination and thought that part of the settlement guaranteed her a job with the County.  It did not.  She thought she was paying a 1/3 contingent fee.  It seems she paid more.

“The settlement agreement, however, did not state that plaintiff may be employed [*2]with the County. Rather, it provided that plaintiff “will be offered a position” with the County. Plaintiff averred that she believed that she was going to receive a job offer from the County and alleged that she relied on the representation that she would be employed with the County. She further alleged that defendant did not obtain the signature of a County representative to ensure that she would receive future employment with the County and that, absent such employment, her settlement compensation was grossly deficient. Plaintiff also averred that she was never counseled about how to protect her right to future employment with the County and alleged that, after she raised questions about the settlement agreement, an attorney with defendant told her that “the law firm was ‘done’ working on her case” and that she had to sign the agreement. Accepting plaintiff’s averments and allegations as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Berry v Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [2007]) and inasmuch as the documentary evidence submitted by defendant does not conclusively refute them (see New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 150 AD3d 1589, 1594 [2017]), Supreme Court correctly denied that part of the motion seeking dismissal of the legal malpractice claim (see Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1117 [2014]; Soule v Lozada, 232 AD2d 825, 825 [1996]).[FN1]

Regarding the breach of contract claim, plaintiff alleged in the complaint that the retainer agreement between the parties provided that defendant would receive 33⅓% of any amount received by plaintiff as compensation. There is no dispute that defendant received $25,000 as payment for legal fees. The record, however, does not conclusively establish how this amount was calculated or how it represented 33⅓% of plaintiff’s total compensation. Taking into account that plaintiff received $10,000 as monetary compensation from the Town and other incidental benefits and according plaintiff the benefit of every possible favorable inference, defendant is not entitled to dismissal of the breach of contract claim at this juncture (see Dubon v Drexel, 195 AD3d 991, 993 [2021]; Dubrow v Herman & Beinin, 157 AD3d 620, 621 [2018]). Finally, defendant’s reliance on the voluntary payment doctrine is unavailing.”

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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.