Alphas v Smith  2022 NY Slip Op 30722(U) March 7, 2022 Supreme Court, New York County Docket Number: Index No. 155790/2015 Judge: Lewis J. Lubell presents the situation in which both plaintiff and defendant file motions for summary judgment, each supported by experts.  In the duel of the experts, the dual motions are both denied.

“By way of background, plaintiff1 commenced this action for legal malpractice with the filing of a summons and complaint, which was later amended (Amended Complaint).2
The Amended Complaint alleges the following. Plaintiff retained defendants to represent plaintiff, Alphas Company of NY, Inc., and Alphas Company, Inc. in several pending
actions. One of the pending actions was Daniel Kan’e Jr. et al. v The Alphas Company of New York, Inc. (underlying litigation), in which it was alleged that The Alphas Company
of NY, Inc. (Alphas NY) owed:!$11,450.00 for late payments to a certain Pension and Welfare Fund Fund).  Subsequently, the Fund advised by letter (withdrawn letter) that it had determined that Alphas NY had ceased contributions to the Fund and thus effected a complete withdrawal from the Fund, triggering a withdrawal liability of $ 983,579.74 to be paid in a certain number of installments (withdrawal liability).  The withdrawal letter Plaintiff claims that defendants did not answer the amended complaint in the underlying litigation and did not oppose the motion for default judgment and that a default judgment was entered on April 30, 2013 in the total amount of $1,209,419.35. Plaintiff also claims that, upon learning of the default judgment, plaintiff retained a new attorney and in July 2013 moved to vacate the defaultj udgment.  Plaintiff alleges that defendants’ malpractice led to a series of business and financial losses whereby he suffered damages of approximately $4,000,000.00. Plaintiffs purported damages included loss of his license to conduct business; loss of income; loss of loans to Alphas NY; a lower credit score; attorneys’ fees to move to vacate the judgment incurred as a result of the default judgment regarding the withdrawal liability; and damages as a result of plaintiff being forced to file for bankruptcy. ”

“In order to establish a claim for legal malpractice, a plaintiff must demonstrate that an attorney owed a duty to plaintiff (see Genesis Merchant Partners, L.P. v Gilbride, Tusa,
Last & Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018]), that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession, that the plaintiff would have prevailed on the merits but for the attorney’s negligence, and that the attorney’s negligence proximately caused actual and
ascertainable damages (see Kivo v Louis F. Burke, P.e., 187 AD3d 503 [1st Dept 2020]). Here, material issues of fact abound. Most critically, there is a material issue of fact as to
whether plaintiff retained defendants to respond to the withdrawal letter.s Additionally, there is a material issue of fact as to whether defendants’ negligence, assuming they were
negligent, was a proximate cause of the withdrawal liability. Plaintiff’s experts opine that it was; defendants’ expert opines that it was not. Conflicting expert opinions present
material issues of fact and credibility that are inappropriately resolved on a motion for summary judgment (see Severino v Weller, 148 AD3d 272,275 [1st Dept 2017]).”‘

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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.