As is common to legal malpractice cases, Plaintiffs are held to the burden of proving that “but for” the negligence of the attorney, there would have been a different or better outcome.  In Jean-Paul v Rosenblatt  2022 NY Slip Op 04958   Decided on August 17, 2022 Appellate Division, Second Department we see how that rule applies to a situation in which a landlord is granted a judgment of possession, the attorney fails to tell the landlord of the victory and the tenant successfully moves to vacate in the absence of opposition.

“In February 2019, the plaintiff commenced this action against the defendants to recover damages for legal malpractice alleging, inter alia, that they were negligent in failing to inform him about a judgment of possession that they had obtained in his favor in an underlying housing court action and in failing to enforce it. As is relevant to this appeal, the defendants cross-moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In an order dated February 28, 2020, the Supreme Court granted that branch of the defendants’ cross motion. The plaintiff appeals.

The Supreme Court properly granted that branch of the defendants’ cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint. Where, as here, the defendants submitted evidentiary material in support of that branch of their cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint, the criterion becomes whether the plaintiff has a cause of action, not whether one is stated (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845).”

“Even if the defendants had been negligent in the underlying action, the plaintiff’s contentions that the housing court would have decided the motion of the tenant in the underlying action to vacate the judgment of possession in the plaintiff’s favor such that the tenant would have been promptly evicted, and that the plaintiff would not have incurred damages in the form of additional unpaid rent and legal fees while the matter continued, are merely speculative (see Hall v Hobbick, 192 AD3d at 779; Bua v Purcell & Ingrao, P.C., 99 AD3d at 847-848).

Accordingly, the Supreme Court properly granted that branch of the defendants’ cross motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.”

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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.