Lembert v Zucker 2022 NY Slip Op 34440(U) December 23, 2022 Supreme Court, New York County Docket Number: Index No. 151344/2021 Judge: Verna L. Saunders is aptly described by the court:

“Plaintiff commenced this action asserting violation of Judiciary Law § 487, abuse of process, intentional infliction of emotional distress, negligent infliction of emotional distress, and defamation as against defendant, Evan Zucker, an attorney retained to represent plaintiffs former spouse, John Bruzzese, in various matrimonial proceedings. (NYSCEF Doc. No. 1, summons and complaint). “

“The relevant background is as follows: Plaintiffs ex-husband, John Bruzzese, commenced a divorce proceeding on July 31, 2011. The trial took place over several months in 2014 and the court issued its decision after trial on December 30, 2014 (NYSCEF Doc. No. 7, Decision after Trial). Mr. Bruzzese sought a modification of the 2014 order requesting a credit against his equitable distribution payment amongst other things. Plaintiff opposed the motion and cross-moved for relief on various grounds. (NYSCEF Doc. No. 8., Decision and Order June 25, 2018). Several branches of plaintiffs cross-motion were denied and as such, she moved to reargue. The court denied her
motion to reargue (NYSCEF Doc. No. 9, Decision and Order August 23, 2018) and plaintiff appealed (NYSCEF Doc. No. I 0, Appellant’s Brief). At the time the instant motion was filed, the Second Department had not yet rendered a decision. However, a decision has since been rendered affirming the June 25, 2018 and August 23, 2018 decisions of the trial court (NYSCEF Doc. No. 21, App Div, Second Dept Decision and Order March 23, 2022). The Second Department did not address the claims asserted in this action.

In the case at bar, plaintiff alleges several instances in which defendant knowingly made
material misrepresentations to the court. Most, if not all, of the examples provided are with respect to arguments advanced on behalf of Mr. Bruzzese before the Second Department. There is no dispute that plaintiff included these claims in her brief to the Second Department. However, as previously noted, the Second Department declined to address said claims.

After careful consideration of the arguments advanced, defendant’s motion is granted.”

“Turning to the Judiciary Law § 487, “relief under a cause of action based upon Judiciary Law § 487 is not lightly given and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys that caused damages. Allegations regarding an act of deceit or intent to deceive must be stated with particularity. The claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient.” (Face book, Inc. v DLA Piper LLP (US), 134 AD3d 610,615 [1st Dept 2015] [internal citations and quotations omitted].) Scienter is a legal term that refers to a culpable state of mind, as such plaintiff would need to prove that defendant acted knowingly, willfully, intentionally, or recklessly. While plaintiff asserts defendant made material misrepresentations knowingly, such allegation is wholly conclusory, especially where defendant was making statements on behalf of another person in his capacity as their attorney. An attorney is liable for a violation of Judiciary Law § 487 if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the Court or any party; or … [ w ]ii fully delays his client’s suit with a view to his own gain.” A cause of action under the statute “requires a showing of ‘egregious conduct or a chronic and extreme pattern of behavior’
on the part of the defendant attorneys that caused damages” (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610,615 [1st Dept 2015), Iv denied 28 NY3d 903 [2016] [citation omitted]). Allegations of deceit or the intent to deceive must be pied with particularity (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2d Dept 2018), affd 35 NY3d 173 [2020]; Face book, Inc. v DLA Piper LLP (US), 134 AD3d at 615 [ dismissing a Judiciary Law § 487 claim where the allegations of scienter were conclusory and were not supported by specific facts]). Insofar as plaintiff’s claims of a scienter are not supported by sufficient facts, this cause of action for Judiciary Law § 487 must also be dismissed.”

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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.