A frequently recurring situation in legal malpractice cases is that plaintiff retains lawfirm in a medical malpractice case, and very shortly before the statute of limitations date, the lawfirm bows out. They quit, often because they have been unwilling or unable to fund an expert, whose review is necessary prior to filing the complaint.  Legal malpractice?Buxton v Zukoff  2021 NY Slip Op 06942 Decided on December 14, 2021 Appellate Division, First Department sheds some light in a failure to file the notice of claim/late notice of claim setting.

“The injured plaintiff claims that defendants Seth Zukoff and his law firm (together, Zukoff) failed to timely file a notice of claim against the appropriate parties regarding his motor vehicle accident involving a Nassau County public bus on November 7, 2012. Pursuant to General Municipal Law § 50-e, the notice of claim should have been served within 90 days, or by February 5, 2013. On July 16, 2013, plaintiffs discharged Zukoff as counsel and retained third-party defendant R&L. Two months later, R&L discovered that Zukoff had failed to timely file the notice of claim and formally terminated its legal representation of plaintiffs in person and via written letter. Pursuant to General Municipal Law § 50-e (5), plaintiffs had to seek leave to serve a late notice of claim within one year and 90 days of the accident, i.e., February 5, 2014. That deadline passed without plaintiffs retaining new counsel or any legal action taken. Plaintiffs then retained a third legal counsel, which filed a personal injury action that was ultimately dismissed for failure to serve a timely notice of claim.

Zukoff’s legal malpractice claim against R&L must be dismissed. R&L established prima facie that it provided the advice expected of legal counsel exercising ordinary reasonable skill and knowledge and that it did not breach any duty toward plaintiffs (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50 [2015]). Moreover, it terminated its attorney-client relationship through a September 11, 2013 letter that was received by plaintiffs approximately five months before the General Municipal Law § 50-e deadline, and such notice provided sufficient time for plaintiffs to retain successor counsel and pursue their claim (see Cabrera v Collazo, 115 AD3d 147, 151 [1st Dept 2014]). R&L also took steps to avoid any negligence by expressly advising plaintiffs that a limitations period existed, using layman’s language to explain the last day to commence a lawsuit, and urging them to contact counsel immediately to ensure the action was timely filed and to avoid jeopardizing their rights or allowing any legal deadlines to expire (see Mortenson v Shea, 62 AD3d 414, 415 [1st Dept 2009]; see also Clissuras v City of New York, 131 AD2d 717, 718-719 [2d Dept 1987], appeal dismissed 70 NY2d 795 [1987]). In opposition, Zukoff failed to raise an issue of fact with respect to its claim that R&L breached its duty toward plaintiffs.

As R&L did not owe a duty to plaintiffs or Zukoff to seek leave to file a late notice of claim after it terminated the attorney-client relationship[*2], Zukoff’s indemnification and contribution claims must also be dismissed against it.”

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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.