Singh v Pliskin, Rubano, Baum & Vitulli  2021 NY Slip Op 07019
Decided on December 15, 2021 Appellate Division, Second Department

“The plaintiff Roopnarine Singh is the majority shareholder of the plaintiff MSN Air Service, Inc. (hereinafter MSN). Edward A. Radburn is the minority shareholder of MSN. In 2009, Radburn commenced a proceeding pursuant to Business Corporation Law § 1104-a in the Supreme Court, Queens County, for the judicial dissolution of MSN (hereinafter the Queens action). Singh retained the defendants to represent him in the Queens action. On the advice of the defendants, Singh elected to purchase Radburn’s shares in MSN pursuant to Business Corporation Law § 1118(a). When Radburn repeatedly failed to appear for conferences or the valuation hearing, the defendants moved on Singh’s behalf to dismiss the Queens action with prejudice. The court “marked [the proceeding] off [the] calendar without prejudice.”

Thereafter, Radburn, individually and derivatively on behalf of MSN, commenced an action against Singh in the Supreme Court, Nassau County, alleging causes of action seeking an accounting and to recover damages for breach of contract, breach of fiduciary duty, and unjust enrichment (hereinafter the Nassau action). The court granted Radburn a preliminary injunction restraining Singh from taking certain actions with respect to MSN, and, after the defendants had withdrawn as counsel for Singh, appointed a temporary receiver for MSN. In September 2016, Singh and Radburn settled both the Queens and Nassau actions.

The plaintiffs then commenced this action alleging that the defendants committed legal malpractice by, inter alia, failing to prosecute the Queens action to completion prior to the commencement of the Nassau action in that, after the court marked the Queens action off the calendar, the defendants did not attempt to finalize Singh’s election to purchase Radburn’s shares [*2]in MSN. The complaint also alleged that the defendants were negligent in advising Singh to operate MSN without also advising him that absent the completion of his purchase of Radburn’s shares, the plaintiffs still had obligations to Radburn, including to pay him his contractually owed salary and benefits and his share of any distributions made by MSN. The defendants moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the legal malpractice cause of action. The plaintiffs opposed the motion. In an order entered April 19, 2019, the Supreme Court denied that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action. The defendants appeal.”

“The complaint, as augmented by the affidavit of Singh submitted in opposition to the defendants’ motion to dismiss, sufficiently stated a cause of action for legal malpractice (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87-88; Doe v Ascend Charter Schs., 181 AD3d 648, 649-650). Contrary to the defendants’ contention, at this preliminary stage of the litigation, they failed to conclusively demonstrate that the plaintiffs’ subsequent attorney had a sufficient opportunity to correct the defendants’ alleged negligence, such that they did not proximately cause any damages flowing from that negligence (see Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 591). The defendants also failed to demonstrate that their actions were protected by the attorney judgment rule (see generally Rosner v Paley, 65 NY2d 736, 738; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505).

The documents submitted by the defendants do not utterly refute the factual allegations of the complaint and do not conclusively establish a defense to the plaintiffs’ legal malpractice claim as a matter of law (see CPLR 3211[a][1]; Cali v Maio, 189 AD3d 1337, 1338; Gorunkati v Baker Sanders, LLC, 179 AD3d 904, 906).”

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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.