Stevens v Wheeler  2022 NY Slip Op 31699(U) April 27, 2022 Supreme Court, New York County Docket Number: Index No. 151129/2021 Judge: David B. Cohen is a complex statutory legal malpractice case which turns on how a Rhode Island Estate law treats a spouse in her fight with a son over the deceased father’s estate.  We see the all too common situation where the child moves the father away and restricts the wife’s ability to visit him.  We see the Estate suing the attorneys.

“Preliminarily, defendants’ assertion that plaintiffs lack standing to bring this action because they are not in privity with defendants is without merit. “[P]rivity, or a relationship
approaching privity, exists between the personal representative of the estate planning attorney” (Estate of Schneider v Finmann, 15 NY3d 306, 309 [2010]). The estate stands in the shoes of the decedent and, therefore, has the capacity to maintain a malpractice claim on behalf of the estate (id.). The personal representative of the estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate (id.). As such, plaintiffs, executors of the decedent’s estate, may properly pursue claims against defendants for improper estate planning, resulting in damages to the estate (see id.). “Moreover, such a result comports with EPTL 11-3 .2(b ), … which generally permits the personal representative of a decedent to maintain an action for ‘injury to person or property’ after that person’s death” (id.).

Here, plaintiffs claim that defendants, by counseling that the Will should be probated in Rhode Island under Rhode Island law, rather than in New York under New York law, acted
contrary to James W. Stevens’ intended testamentary scheme of bequeathing his residuary estate equally among Mary K. Stevens, Hardie Stevens, and Mark W. Stevens, thus resulting in Mary K. Stevens exercising an alleged right of election under Rhode Island law and obtaining a larger portion of the residuary estate, and Hardie M. Stevens obtaining a lesser portion, than was contemplated by the Will and Codicils. Applying the established standard, this Court concludes that, to the extent that the Complaint alleges that James W. Stevens and the Estate sustained damages as a result of defendants’ actions, plaintiffs, as co-executors, may properly bring an action on behalf of the Estate (see id.). ”

“As discussed previously, the Will and Codicils do not contain any choice of law provisions, and James W. Stevens died in Rhode Island, where he owns a home. Plaintiffs
maintain that defendants’ advice that the Will should be probated in Rhode Island under Rhode Island law constituted a breach of their duty to represent James W. Stevens and the Estate since, under Rhode Island law, Mary K. Stevens is entitled to waive her bequests under the Will and elect to take a statutorily prescribed share in an amount generally equal to one-half of James W. Stevens’ personal property. Plaintiffs assert that the election resulted in Mary K. Stevens obtaining a portion of the residuary estate greater than the amount provided to her in the Will. However, a review of the plain language of the Rhode Island statutory scheme undermines plaintiffs’ position. Rhode Island General Law §33-28-l(a) provides that the surviving spouse of a decedent who dies domiciled in this state has a right of election to take an elective share equal to “(1) [t]he life estate and allowance in an intestate’s real estate titled in the name of the decedent individually at the time of the decedent’s death pursuant to §§33-1-5 and 33-1-6” and “(2) [t]he share of the decedent’s personal estate subject to probate pursuant to §33-1-10. The elective share may be taken in kind or the value thereof.” Sections 33-1-5 and 33-1-6 are inapplicable here since James W. Stevens did not die intestate. Similarly, §33-1-10 does not apply since it concerns “[s]urplus personalty not bequeathed,” not an expressly devised residuary estate. “If the language is clear on its face, then the plain meaning of the statute must be given effect” (Gilbane v Paulas, 576 A2d 1195, 1196 [R.I. 1990]). Thus, §33-28-1 does not provide Mary K. Stevens with a right of election to obtain a larger portion of the residuary estate than that contemplated by the Will.

Moreover, defendants establish by documentary evidence that they did not breach any duty of care owed to plaintiffs, and that the Estate was not damaged by the probate of the Will in Rhode Island. The Stipulated Order and ensuing Agreement entered into between Mary K. Stevens and Hardie M. Stevens, which resolved the Objection filed by Mary K. Stevens, set forth the portion of the residuary estate that she was to receive. The decision to resolve the Objection was the sole basis for the amendment to Mary K. Stevens’ share of the residuary estate. The plaintiffs do not allege that decision to resolve the Objection was compelled by Rhode Island law. Rather, Hardie M. Stevens acknowledges that he entered into the Agreement with Mary K. Stevens to amend and restate the residuary shares under the Will (see Stevens Affid., NYSCEF Doc. No. 28). It is undisputed that defendants did not represent Hardie M. Stevens in connection with the decision to enter into the Stipulated Order and Agreement. Thus, defendants are entitled to dismissal of the negligence claim.”

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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.