Rosenbaum v Myers, 2022 NY Slip Op 33975(U)  November 18, 2022  Supreme Court, New York County  Docket Number: Index No. 652971/2019  Judge: Lucy Billings is a most unusual story.  Attorney and divorce client meet, successfully obtain the divorce, fashion the attorney fee payment based upon investment advice given by the attorney to the client, purchase a Lennox Avenue property and live together for years.  The attorney is supposed to get a percentage of the sale price of the property, but, alas, is not paid.

“The parties lived together from approximately 2007 to 2019. Before then, defendant was married to non-party William Kaczmarek. Defendant and Kaczmarek litigated a divorce action between 2002 and 2006, when their divorce was finalized. According to the complaint in this action, during the divorce action, “Plaintiff provided advice to Defendant, appeared on Defendant’s behalf in the divorce proceeding, assisted in negotiating the settlement, and helped obtain the favorable resolution of the proceeding.”

“Plaintiff also helped defendant deal with the acquisition and development of residential property at 202 Lenox Avenue, New York County, an asset at issue in the divorce action. · Id. ii 14-15. Defendant did not pay plaintiff for his legal services, but she later signed a document titled “Acknowledgment of Debt” dated February 7, 2005, which, on its face, acknowled~~s a debt defendant owed to plaintiff for legal advice and services he previously provided equal to 25% of the net profit from the potential future sale 0£ the Lenox Avenue propeity. Aff. of Benjamin Allee Ex. 1, NYSCEF Doc. 85. The document describes the debt as owed for plaintiff’s “extensive representation and advice in all legal proceedings and negotiations with various parties, the City of New York, and the financing and development of the property.” Id. This advice and representation dated back to at least June 7, 2004, when plaintiff alleges that he advised defendant to consider obtaining the Lenox Avenue property in her divorce settlement and dealt with the City of New York and Astoria Bank to help her acquire the property, obtain a mortgage, and develop the property. The only legal proceedings were in the divorce action. In February 2016 defendant sold the property and did not pay plaintiff. ”

“After the parties’ romantic relationship ended in 2019, plaintiff sued on a single breach of contract claim to enforce the Acknowledgment of Debt .. Defendant counterclaimed for
plaintiff’s legal malpractice in his representation of her during her divorce action and for intentional infliction of emotional distress, alleging domestic violence and physical and verbal
abuse between January 13 and February 12, 2019. ”

“To establish breach of a contract, plaintiff must demonstrate a contract that plaintiff performed and that defendant breached and damages from defendant’s breach. Alloy Advisory, LLC v. 503 W. 33rd St. Assocs., Inc., 195 A.D.3d 436, 436 (1st Dep’t 2021). For a contract, plaintiff points to the Acknowledgment of Debt, which describes plaintiff’s consideration
as prior legal services. Allee Aff. Ex. 1. It is undisputed that plaintiff provided legal services to defendant and that defendant has not paid to plaintiff her consideration: 25% of
the net profit from the sale of the property described in the Acknowledgment of Debt. Therefore plaintiff has made a prima facie showing of d~fendant’s breach of· that 6ontract, shifting the burden to defendant to demonstrate the absence of at least one of the elements of the breach of contract claim . ”

“If this consideration, legal representation and counsel in defendant’s divorce action, were prospective consideration for a promised 25% of the net profits from the sale of the Lenox Avenue property, that consideration would be unenforceable. It is undisputed that plaintiff did not abide by the rules governing attorneys’ representation of clients in matrimonial actions, which require a written retainer agreement. 22 N.Y.C.R.R. § 1400.3; Rosenbaum v. Myers, 191 A.D.3d 445, 446 (1st Dep’t 2021).

An attorney’s failure to abide by the rules in matrimonial actions bars the attorney’s recovery of fees, invalidating the Acknowledgment of Debt. Law Off. of Sheldon Eisenberger v.
Blisko, 106 A.D.3d 650, 652 (1st Dep’t 2013); Edelman v. Poster, 72 A.D.3d 182, 184 (1st Dep’t 2010); Julien v. Machson, 245 A.D.2d 122, 122 (1st Dep’t 1997); Grecco v. Grecco, 161
A.D.3d 950, 951 (2d Dep’t 2018) (collecting decisions). Plaintiff insists that 22 N.Y.C.R.R. Part 1400’s client protective requirements do not apply to him, as 22 N.Y.C.R.R. §
1400.1 excepts attorneys who are not being paid by their client from those requirements. If plaintiff is not to be paid by his client, however, his legal services are not consideration for the purpose of validating the purported contract. On the other hand, were plaintiff’s legal services prospective consideration in the contract, the exception in 22 N.Y.C.R.R. § 1400.1 would not apply, and the contract would be unenforceable. Adjmi v. Tawil, 180 A.D.3d 435, 436 (1st Dep’t 2020); Law Off. of Sheldon Eisenberger v. Blisko, 106 A.D.3d at 651; Edelman v. Poster, 72 A.D.3d at 184. Plaintiff may not circumvent important measures for the protection of clients in matrimonial actions through the cunning use of a contract after the fact, having claimed his services were pro bono only when convenient. “

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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.