In Provenzano v Cellino & Barnes, P.C. 2022 NY Slip Op 04749 Decided on July 27, 2022 Appellate Division, Second Department we see an illustration of the “no harm-no foul” spirit of legal malpractice.  Sure, an attorney may make a mistake, depart from good practice or fail to explore an avenue of recovery, but if it was doomed from the start (or in hindsight seems doomed to the Court) there will be no successful legal malpractice case.

“On April 19, 2010, the plaintiff, who was the store manager at the Banana Republic store at Woodbury Commons mall on Jericho Turnpike, sustained injuries when a vehicle struck her as she was crossing the street. The plaintiff had finished working for the day, and was walking toward her vehicle in the parking lot. The plaintiff testified that all Woodbury Commons employees were supposed to park in that parking lot, and that the parking lot was also used by customers. To access to the parking lot, the plaintiff had to descend some stairs, which were used by the public to access a bank and a store. The plaintiff was struck by the vehicle while she was in a road used by anyone entering or exiting the mall.

The plaintiff retained the defendant law firm to represent her in a personal injury action against the driver of the car. After the plaintiff became dissatisfied with its representation, she discharged the defendant law firm. Thereafter, the plaintiff applied for Workers’ Compensation benefits. Her Workers’ Compensation claim was denied as time-barred because it was filed more than two years after the accident.

On or about September 11, 2014, the plaintiff commenced this action, alleging that the defendant law firm had committed malpractice because it, among other things, failed to file for Workers’ Compensation benefits on her behalf and misadvised her regarding her right to file a Workers’ Compensation claim. The defendant moved for summary judgment dismissing the complaint and the plaintiff cross-moved for summary judgment on the complaint. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion. The plaintiff appeals.

“‘A plaintiff seeking to recover damages for legal malpractice must prove that the 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 [*2]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'” (EDJ Realty, Inc. v Siegel, 202 AD3d 1059, 1060, quoting Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830).

Here, the defendant demonstrated, prima facie, that the plaintiff would not have prevailed in her claim for Workers’ Compensation benefits (see EDJ Realty, Inc. v Siegel, 202 AD3d 1059). The evidence established, prima facie, that the underlying accident was related to a risk shared by the general public, as opposed to a special hazard connected to the plaintiff’s employment (see Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 144; Matter of Johnson v New York City Tr. Auth., 182 AD3d 970, 971; Matter of Brennan v New York State Dept. of Health, 159 AD3d 1250, 1252; Matter of Trotman v New York State Cts., 117 AD3d 1164, 1165; Matter of Littles v New York State Dept. of Corrections, 61 AD3d 1266, 1268; Matter of Cushion v Brooklyn Botanic Garden, 46 AD3d 1095, 1096; cf. Matter of Cadme v FOJP Serv. Corp., 196 AD3d 983, 984). In opposition, the plaintiff failed to raise a triable issue of fact as to whether, inter alia, she was exposed to a special hazard.

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion for summary judgment on 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.