Privity is a keystone in the legal malpractice world.  Here. in Jarmuth v Wagner    2022 NY Slip Op 33698(U)  October 28, 2022  Supreme Court, New York County  Docket Number: Index No. 161816/2019 Judge: Dakota D. Ramseur a co-op shareholder sues the Co-op’s attorney derivatively on behalf of the Co-op.

“In December 2019, Plaintiff Sandra Jarmuth, on behalf of shareholders in 36 East 69th Corp. (the co-op), commenced this derivative suit to recover monetary damages arising from
defendants Steven Wagner, Bonnie Berkow, and the Law Offices of Wagner Berkow LLP’s representation of the co-op in an underlying property-damage action. Plaintiff asserts that
defendants committed legal malpractice when Wagner allegedly advised the co-op to drop a cross-claim for attorneys’ fees it had asserted in the underlying action. The malpractice, plaintiff alleges, prevented the co-op from recovering on $150,000 in legal fees. In Motion Sequence 001, defendants move to dismiss the action pursuant to CPLR 3211 (a) (1), {a) (5), and (a) (7). Likewise, in Motion Sequence 002, the co-op, as a nominal defendant, moves to dismiss pursuant to those same rules. For the following reasons, the motions are granted, and the complaint is dismissed.”

“As to defendants’ motion via CPLR 3211 (a) (7), to properly plead a cause of action for legal malpractice, a plaintiff must allege: (1) the existence of an attorney-client relationship; (2)
negligence on the part of the attorney or some other conduct in breach of that relationship; (3) the attorney’s conduct was the proximate cause of the injury to plaintiff; and (4) that plaintiff suffered actual and ascertainable damages. (Tinter v Rapaport, 253 AD2d 588 [1st Dept 1998].) Stated somewhat differently, a plaintiff must show that the attorney failed to exercise the ordinary reasonable skill and knowledge possessed by a member of the legal profession and the attorney’s breach is a proximate, or “but for,” cause of the plaintiffs injuries. (See Benishai v Epstein, 116 AD3d 726, 727 [2d Dept 2014].) Where a plaintiff fails to plead any element of the legal malpractice standard, the defendant is entitled to a dismissal of the complaint under CPLR 3211 (a) (7). (See Zarin v Reid & Priest, 184 AD2d 385,387 [1st Dept 1992].) Even viewing the complaint in the light most favorable to plaintiff, plaintiff has failed to demonstrate defendant’s negligent or incompetent conduct, that the alleged acts or omission forming the basis of plaintiffs cause of action were the proximate cause of plaintiffs injuries, or that plaintiff suffered ascertainable damages.

Plaintiff summarized the facts constituting her legal malpractice claim as follows: ( 1) the Alteration Agreement provides that Nunnerley would indemnify the co-op for any damages and attorneys’ fees arising from her renovation; (2) Witbeck suffered damages due to Nunnerley’s renovations and brought a claim; (3) upon defendants’ advice, the co-op asserted that a crossclaim against Nunnerley and advised the co-op it had a strong likelihood of success; ( 4) nevertheless, defendants-the attorneys-did not prosecute a claim for legal fees; and (5) the coop suffered $150,000 in damages because the settlement did not include reimbursement for the co-op’s attorney’s fees. (NYSCEF doc. no. 41, plaintiff memo of law; NYSCEF doc. no. 10 at ,r,r 20, 22, and 24, complaint.) Perhaps recognizing the above-stated allegations are entirely conclusory, plaintiff further alleges that defendants failed to prosecute (or advised the co-op not to prosecute) because they believed that the co-op would have to be the prevailing party in the Witbeck action to recover against Nunnerley-a position, plaintiff contends, that was demonstrably incorrect.

Still, after reading plaintiffs opposition papers, it is unclear to the Court which acts and omissions constitute plaintiffs claim for malpractice. As mentioned above, plaintiff highlights
the fact that defendants did not prosecute the co-op’s cross-claim but the Court is unsure where, specifically, the negligence is in “never pursuing a claim” when the co-op itself is responsible for those decisions.3 Similarly, the Court is unsure how plaintiff can argue that the co-op entered the settlement agreement-and forwent the cross-claim-based on erroneous advice provided by defendants when plaintiff acknowledges defendants provided correct advice about the availability of the cross-claim. (NYSCEF doc. no. 10 at ,r22 [“Defendants repeatedly and correctly advised the Shareholders and co-op that they had a strong cross-claim against Nunnerley.”])4 To resolve the tension here, plaintiff alleges that something changed, yet the pleadings require the court to attribute the change to defendants’ malpractice based solely on legal conclusions. From 2013 through 2015, defendants were allegedly giving faulty advice, apparently on an on-going basis, but the pleadings contain no factual allegations-no communications of any kind-that describe or relate to defendants’ advice.”

Email this postTweet this postLike this postShare this post on LinkedIn
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.