Roedelbronn v Borstein & Sheinbaum LLC  2022 NY Slip Op 31434(U) May 3, 2022 Supreme Court, New York County Docket Number: Index No. 158045/2020 Judge: William Perry is a rare divorce legal malpractice case that has actionable facts which give rise to provable damages.  (Example:  a miscalculation by the Referee of $ 417,000 in plaintiff’s favor, not challenged by the attorneys).  However, the Court finds it too late and after the statute of limitations has passed.

“Atrial was held before Special Referee Joseph Burke from June 23 to July 16, 2015. On October 13, 2016, Referee Burke issued a report recommending that Cotton pay Plaintiff
$20,000.00 in maintenance per month and that Plaintiff be allocated “10% of the marital property portion of the Agrifos business assets”. (NYSCEF Doc No. 16, Burke Report, at 3-4, 7.) The Hon. Deborah Kaplan adopted the recommendations and issued a judgment of divorce on October 20, 2017. (NYSCEF Doc No. 21, Judgment of Divorce, affd 170 AD3d 595 [1st Dept 2019].)

Plaintiff commenced this action on September 30, 2020, and filed the amended complaint on December 10, 2020, alleging that she was awarded a smaller share of the marital assets and alimony than she was entitled to receive. (NYSCEF Doc No. 8, Am. Cmplt, at ,i 15.) Specifically, Plaintiff alleges that Defendants were negligent in that they:
a. failed to properly prepare for the trial;
b. obtain the services of and use a forensic accountant to testify at the trial even
though funds were provided to obtain one;
c. failed to provide or obtain any witnesses during the trial before the Special
d. failed to provide Exhibits at the Hearing before the Special Referee to respond
to Cotton’s 240 Exhibits and five witnesses other than Plaintiff; ·
e. failed to properly advise plaintiff as to what was needed for the hearing, properly
prepare her for trial or advise her when she was unable to attend on a daily bases
because of severe illness;
f. failed to take all actions necessary to obtain an adjournment in light of
PLAINTIFF’S documented severe illness;
g. failed to properly advise plaintiff;
h. failed to properly confirm the calculations of the Special Referee which appears
to have omitted over $417,991.30 in favor of Plaintiff;
i. failed to properly advise PLAINTIFF with regard to Domestic relations Law 236
and in in general, and
g. failed to properly represent Plaintiff after the hearing and prior to the filing of a
Notice of Appeal.”

“Here, Plaintiffs allegations of malpractice pertain almost entirely1 to the Defendants’ actions or inactions taken during the trial which was held from June 23 to July 16, 2015. (Am.
Cmplt. at 118.) The statute of limitations for legal malpractice arising from the trial expired on July 16, 2018. (CPLR 214[6].) Plaintiffs attempted reliance on the continuous representation doctrine is unavailing (NYSCEF Doc No. 32, Opposition, at 4-5; NYSCEF Doc No. 27, Pl.’s Affidavit), as Plaintiff fails to demonstrate the existence of “clear indicia of an ongoing,  continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice.” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [2d Dept 2017].) To the contrary, Plaintiff’s affidavit reaffirms that the alleged malpractice took place solely during the 2015 trial, as Plaintiff fails to note any further relationship between her and Defendants after the trial’s conclusion. (NYSCEF Doc No. 27, Pl.’s Affidavit, at 1, 21-23.) As such, Defendants’ motion to dismiss pursuant to CPLR 3 211 [ a J[ 5] is granted, and all allegations of Defendants’ legal malpractice committed during the 2015 trial are barred by the statute of limitations.”

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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.