Switching it all around, in Blank v Petrosyants  2022 NY Slip Op 01283
Decided on March 2, 2022 , the Appellate Division, Second Department reinstated the legal malpractice claims and dismissed the Breach of Contract claims, aligning the case structure to what is most often left after a CPLR 3211 motion:  a good legal malpractice claim and a dismissed breach of contract claim.

Not much guidance is given to explain why the legal malpractice claim, but not a Judiciary Law 487 claim survives.

“The plaintiffs, Emil Blank, Vadim Shubaderov, and Oleg Egorov, allege that beginning in late 2013, at the behest of the defendants Zhan Petrosyants and Robert Petrosyants, they invested monies in a catering venture, but the monies were improperly diverted to other sources in which the plaintiffs had no interest. The plaintiffs commenced this action against, among others, the defendants Akiva Ofshtein, Akiva Ofshtein, P.C., and Ofshtein Law Firm, P.C. (hereinafter collectively the Ofshtein defendants), inter alia, to recover damages for breach of contract and legal malpractice. The Ofshtein defendants moved jointly with the defendants Prime Four, Inc., 242 Wood Food, Inc., and Prime Six, Inc. (hereinafter collectively the moving defendants), pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. In an order dated December 19, 2019, the Supreme Court, inter alia, granted that branch of the motion which was to dismiss the legal malpractice cause of action and denied that branch of the motion which was to dismiss the breach of contract cause of action insofar as asserted against Ofshtein by Shubaderov and Egorov. The plaintiffs appeal, and the Ofshtein defendants cross-appeal.

“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” (Mawere v Landau, 130 AD3d 986, 987 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Hall v Hobbick, 192 AD3d 776, 777). In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), “the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Mawere v Landau, 130 AD3d at 988 [internal quotation marks omitted]; see Hall v Hobbick, 192 AD3d at 777-778).

Here, the Supreme Court erred in granting that branch of the moving defendants’ motion which was to dismiss the legal malpractice cause of action insofar as asserted by Shubaderov and Egorov. Granting all favorable inferences to the plaintiffs, the allegations in the complaint are sufficient to plead the existence of an attorney-client relationship between the Ofshtein defendants and Shubaderov and Egorov, and that the Ofshtein defendants committed legal malpractice and breached their fiduciary duties to those plaintiffs (see Mawere v Landau, 130 AD3d at 990; Sitar v Sitar, 50 AD3d 667, 669-670). However, to the extent Shubaderov and Egorov seek 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 motion which was to dismiss the legal malpractice cause of action insofar as asserted by Shubaderov and Egorov only to the extent of directing dismissal of so much of that cause of action insofar as asserted by those plaintiffs as sought to recover treble damages pursuant to Judiciary Law § 487 and otherwise should have denied that branch of the motion.

Moreover, the Supreme Court should have granted that branch of the moving defendants’ motion which was to dismiss the breach of contract cause of action insofar as asserted against Ofshtein by Egorov. The essential elements of a breach of contract cause of action are “the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of that contract, and resulting damages” (Liberty Equity Restoration Corp. v Maeng-Soon Yun, 160 AD3d 623, 626 [internal quotation marks omitted]; see Stewart v Berger, 192 AD3d 940, 941). Here, Egorov was not a party to or intended beneficiary of the escrow agreement that the plaintiffs allege Ofshtein breached, and thus, Egorov cannot recover for an alleged breach of this agreement.”

 

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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.