Ripa v Petrosyants  2022 NY Slip Op 01336 Decided on March 2, 2022
Appellate Division, Second Department can be difficult to follow  The AD decision basically reverses Supreme Court on almost all of its findings, and yet leaves a case more or less intact.  There are two lessons to be taken from this decision.

The first is: “Here, the Supreme Court erred in granting dismissal of the legal malpractice cause of action based upon the plaintiff’s failure to produce evidence of an attorney-client relationship. An attorney-client relationship does not depend on the existence of a formal retainer agreement (see Hall v Hobbick, 192 AD3d at 778), and the plaintiff had no obligation to demonstrate evidentiary facts to support the allegations contained in the complaint (see Doe v Ascend Charter Schs., 181 AD3d 648, 650; Stuart Realty Co. v Rye Country Store, 296 AD2d 455, 456). Furthermore, the complaint sufficiently alleges the existence of an attorney-client relationship between the plaintiff and the Ofshtein defendants (see McLenithan v McLenithan, 273 AD2d 757, 759-760), as well as the other elements of legal malpractice, including damages, to support a legal malpractice cause of action (see Mawere v Landau, 130 AD3d at 990; Sitar v Sitar, 50 AD3d 667, 669-670). However, to the extent the plaintiff seeks an award of treble damages in the context of the legal malpractice cause of action, it fails to state a cause of action pursuant to Judiciary Law § 487 (see Pszeniczny v Horn, 193 AD3d 1091Gorbatov v Tsirelman, 155 AD3d 836, 840). Accordingly, the court should have granted that branch of the Ofshtein defendants’ motion which was to dismiss the legal malpractice cause of action only to the extent of directing dismissal of so much of that cause of action as sought to recover treble damages pursuant to Judiciary Law § 487 and otherwise should have denied that branch of the motion.”

The second is: “The Supreme Court properly denied that branch of the Ofshtein defendants’ motion which was to dismiss the breach of contract cause of action insofar as asserted against Ofshtein. Contrary to the Ofshtein defendants’ contention, the plaintiff did not have a burden to provide extrinsic evidence to support his allegations regarding an alleged oral contract or its terms (see Doe v Ascend Charter Schs., 181 AD3d at 650; Stuart Realty Co. v Rye Country Store, 296 AD2d at 456). Further, to the extent certain checks may constitute documentary evidence (see Big Blue Prods., Inc. [*3]v Arlia, 187 AD3d 1118, 1119), they did not utterly refute the plaintiff’s factual allegations. Payments to a third party can be used to show performance in a breach of contract action (see Shah v Exxis, Inc., 138 AD3d 970, 972-973).”

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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.