In EDJ Realty, Inc. v Siegel  2022 NY Slip Op 01147 Decided on February 23, 2022 Appellate Division, Second Department affirmed dismissal of a legal malpractice claim concerning a notice of appeal from a hybrid complaint against the DHCR.

“The defendant attorney represented the plaintiff in a hybrid proceeding pursuant to CPLR article 78 and action for declaratory relief commenced in the Supreme Court, Bronx County, to review a determination of the New York State Division of Housing and Community Renewal (hereinafter DHCR). The retainer agreement between the defendant and the plaintiff specifically excluded any services in pursuit of an appeal from an adverse determination in the hybrid proceeding/action. In July 2013, the defendant moved to a new office. In an order and judgment (one paper) dated November 12, 2013 (hereinafter the order and judgment), the Supreme Court, Bronx County, in effect, dismissed the action, denied the petition, and dismissed the proceeding, determining that DHCR’s determination was neither irrational nor arbitrary or capricious.

On November 21, 2013, DHCR served a copy of the order and judgment with notice of entry by regular first-class mail sent to the defendant’s former address. On December 12, 2013, the defendant emailed a copy of the order and judgment to the plaintiff. The defendant did not include a copy of the notice of entry, since he had not received that document at his new address. On August 25, 2015, the plaintiff’s new counsel filed a notice of appeal of the order and judgment. In an order dated November 24, 2015, the Appellate Division, First Department, granted DHCR’s motion to dismiss the plaintiff’s appeal as untimely.

In November 2016, the plaintiff commenced this action to recover damages for legal malpractice alleging, among other things, that because the defendant failed to advise DHCR of his change in address, the plaintiff did not receive a copy of the notice of entry and, thus, did not file a timely notice of appeal. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that his alleged negligence in failing to advise DHCR of his new address was not a proximate cause of the plaintiff’s damages because the plaintiff would not have prevailed on appeal. The Supreme Court, inter alia, granted the defendant’s motion, and the plaintiff appeals.”

“A plaintiff seeking to recover damages for legal malpractice must prove that the [*2]defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625 [internal quotation marks omitted]). “The causation element requires a showing that the injured party would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d at 545 [internal quotation marks omitted]). The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice (see Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871). If it is alleged that an attorney’s alleged legal malpractice has prevented a plaintiff from commencing a timely appeal, then the defendant moving for summary judgment based on the absence of causation must affirmatively demonstrate that the plaintiff would not have prevailed in the appeal (see Coccia v Liotti, 70 AD3d 747McCluskey v Gabor & Gabor, 61 AD3d 646).

Here, the defendant demonstrated, prima facie, the absence of at least one of the essential elements of the legal malpractice cause of action. In support of his motion for summary judgment dismissing the complaint, the defendant demonstrated that the plaintiff would not have prevailed in an appeal from the order and judgment (see Matter of Bluestar Props. Inc. v New York State Div. of Hous. & Community Renewal, 91 AD3d 490). In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.”

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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.