Anecdotally, we believe that attorney fee claims make up the majority of attorney cases.  Legal malpractice takes up a very minor portion of the overall set of cases in which an attorney is a party.  Hand Baldachin & Amburgey LLP v John Barrett, Inc.  2022 NY Slip Op 50826(U)  Decided on August 26, 2022  Supreme Court, New York County
Reed, J. is a typical case.

“Barrett Holdings retained law firm Hand Baldachin & Associates, LLP (“HBA”) to perform legal services, pursuant to an engagement agreement dated February 25, 2015 (the “engagement agreement”), which was signed by both parties. Thereafter, HBA performed certain corporate and litigation services on behalf of Barrett Holdings and its affiliated entity, John [*2]Barrett, Inc.[FN1] HBA performed limited corporate law services in connection with a deal between Barrett Holdings and Saks & Company LLC to open John Barrett salons in Saks Fifth Avenue department stores. HBA also represented John Barrett, Inc., in connection with a lawsuit entitled Red Door Salons, Inc. v. Georges Reuset al., Index No. 653439/2015 (Sup Ct., New York County 2015).

Thereafter, HBA issued 12 invoices to Barrett Holdings, between April 10, 2015 and April 6, 2016, for legal services rendered and expenses incurred during HBA’s representation. As of the last invoice dated April 6, 2016, Barrett Holdings owed HBA $9,246.88 for corporate work and $186,393.50 for litigation work, for a total of $195,640.38. These amounts remain outstanding.

Plaintiff commenced this action against defendant by filling a summons and complaint on November 22, 2016, asserting three causes of action: breach of contract, unjust enrichment quantum meruit and an account stated (NYSCEF Doc. No. 1, complaint, 7). On December 19, 2016, Defendants filed an answer with counterclaims, for legal malpractice, breach of fiduciary duty, and unjust enrichment.”

“As to the merits, HBA has established a valid cause of action against Barrett Holdings. The elements of a cause of action for breach of contract are: “(1) the existence of a contract, (2) the plaintiff’s performance, (3) the defendant’s breach, and (4) resulting damages.” (Alloy Advisory, LLC v. 503 W. 33rd St. Assoc., Inc., 195 AD3d 436, 436 [1st Dept 2021]). In support of this motion, Douglas Hand of HBA submitted the contract between HBA and Barrett Holdings, as well as an affidavit stating that HBA performed the legal services; incurred the expenses reflected on 12 invoices sent to Barrett Holdings; and that a balance of $195,640.38 remains outstanding. Having proven the elements of its breach of contract claim and satisfied the procedural requirements of CPLR § 3215, HBA is entitled to a default judgment in the amount of $195,640.38, plus statutory interest from Barrett Holdings.

In addition to granting a default judgment in favor of HBA, the court is also dismissing Barrett Holdings’ counterclaims against HBA asserted in the amended answer. CPLR Rule 3216(a) states, in relevant part: “Where a party unreasonably neglects to proceed generally in an action the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party’s pleading on terms.” CPLR Rule 3216 may be used to dismiss counterclaims (see Burke, Albright, Harter & Rzepka LLP v. Sills, 187 AD..3d 1507, 1508 [4th Dep’t 2020]; Express Shipping, Ltd. v. Gold, 63 AD3d 669, 671 [2d Dep’t 2009]).

The conditions precedent to dismissal are: issue must have been joined [CPLR 3216(b)(1)]; one year has passed since the joinder of issue or six months have passed since the issuance of the preliminary conference order, whichever is later [CPLR 3216(b)(2)]; and the movant must serve a 90-day notice by registered or certified mail demanding the resumption of prosecution and stating that failure to do so will serve as the basis for a motion to dismiss [CPLR 3216(b)(3)].

Here, all three conditions have been satisfied. Issue was joined on December 19, 2016, when defendants filed an answer with counterclaims (NYSCEF, Doc. No. 3). It has been more than six months since the court issued the preliminary conference order on June 19, 2019 [*4](NYSCEF, Doc. No. 26). It has been more than 90 days since HBA served a notice upon Barrett Holdings, via its registered agent, to resume prosecution of its counterclaims (NYSCEF, Doc. No. 79). In that notice, HBA explicitly stated that defendant’s default in complying with the demand within 90-day period will serve as a basis for a motion by plaintiff to dismiss said counterclaims for unreasonably neglecting to proceed (id.) To date, Barrett Holdings has failed to appear by counsel as previously ordered by the Court on April 16, 2021. (NYSCEF, Doc. No. 75). Therefore, dismissing counterclaims is proper under CPLR Rule 3216(a). However, the dismissal of the counterclaims is not on the merits.”

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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.