Marcum LLP v L’abbate, Balkan, Colavita & Contini, LLP   2022 NY Slip Op 31913(U)  June 17, 2022  Supreme Court, New York County Docket Number: Index No. 151586/2021  Judge: Joel M. Cohen is a decision on a motion to reargue.  The legal malpractice case was earlier dismissed as too speculative.  The Fee claims remain.

“Plaintiff brought a single claim for legal malpractice against Defendants alleging, among other things, failure to timely produce relevant documents in discovery, negligently producing privileged and protected materials, and withdrawing from the representation of Marcum in the underlying litigation just months before trial with a motion for sanctions pending (NYSCEF 1). In its claim for damages, Plaintiff sought recovery of additional attorneys’ fees incurred by having to hire new counsel due to the negligence of L’ Abbate (NYSCEF 1 ,52) and disgorgement of attorneys’ fees paid to L’ Abbate since the inception of L’ Abbate’s allegedly negligent conduct and breaches of its duty, including a $2.0 million self-insured retention paid by Marcum (NYSCEF 1 ,57-58). Defendant moved to dismiss the Complaint in its entirety, but did not address the sufficiency of Plaintiff’s claim for legal fees or disgorgement in its papers.”

“In seeking leave to reargue the Court’s denial of the motion to dismiss in its entirety, Defendant’s core argument is that Plaintiff has not sustained any actual damages because it has
not paid any fees that it was not otherwise required to pay under its primary policy. Defendant does not, however, establish that “the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle oflaw” (Pro Brokerage, Inc. v Home Ins. Co., 99 AD2d 971 [1st Dept 1984 ]).

Converting this motion into one to renew, which Defendant attempts in its reply brief, is unavailing. Defendant argues that “where the additional facts presented relate to an issue which had not previously been raised by the parties but, rather, has been raised sua sponte by the court in its memorandum … it [is] error for the court not to consider these additional facts” (Kosovsky v. Park S. Tenants Corp. 45 Misc3d 1216(A) [Sup Ct, NY County 2014]) But unlike Kosovsky v Park S. Tenants Corp., where the court denied plaintiffs motion for summary judgment based on procedural grounds not raised by the parties, here the burden was always on Defendant to show that dismissal of the complaint in its entirely was warranted, which Defendant failed to do. The Court simply noted at argument that Defendant failed to address a portion of Plaintiffs claim. A motion for leave to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Renna v Gullo, 19 AD3d 472, 473 [2d Dept 2005]). ”


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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.