RTW Retailwinds, Inc. v Colucci & Umans 2023 NY Slip Op 00831 Decided on February 14, 2023 Appellate Division, First Department represents a rare instance of the Appellate Division examining all of the reasons why a legal malpractice case is dismissed early on in a case. There were three or more acts by the defendant attorneys which were pled, with one claim remaining in the case after appeal.

“Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about August 13, 2021, which, to the extent appealed from as limited by the briefs, granted defendants’ motions to dismiss the legal malpractice claim as against them, unanimously modified, on the law and the facts, to the extent of denying the motions as to plaintiffs’ claim based on defendants’ failure to produce discovery and present evidence at trial relevant to a “crowded field” defense, and the malpractice claim reinstated to that extent only, and otherwise affirmed, without costs.

Plaintiffs commenced this legal malpractice action on or about June 1, 2020 against defendant law firms and some of the individual attorneys who had represented plaintiffs before and/or during a federal copyright infringement action that resulted in a judgment against plaintiffs. Plaintiffs appeal from Supreme Court’s order entered on or about August 13, 2021, to the extent that it granted defendants’ motions to dismiss the legal malpractice cause of action against all defendants.”

“Third, documentary evidence establishes that defendants’ decision not to call witnesses, including plaintiffs’ employees to whom defendants had referred in opening statements, was a reasonable strategic decision and not malpractice (see Hand v Silberman, 15 AD3d 167, 167 [1st Dept 2005], lv denied 5 NY3d 707 [2005]). The supporting evidence includes defendants’ written legal opinion, delivered to plaintiffs’ in-house counsel just prior to the close of plaintiff’s case in the copyright infringement action, which examined the pros and cons of calling the witnesses. That correspondence advised that the risks of putting on plaintiffs’ witnesses included likely credibility issues and that evidence indicating plaintiffs’ “bad faith” use of the NY&C VELOCITY mark, which was not consistent with defendants’ original advice, might be brought out at trial. Moreover, plaintiffs’ claim that the outcome of the trial might have been favorable if defendants had presented witnesses is entirely speculative.

However, contrary to the motion court’s conclusions, and viewing the evidence in the light most favorable to plaintiffs, the documentary evidence submitted by defendants did not utterly refute plaintiffs allegations that defendants failed to produce discovery relevant to a “crowded field” affirmative defense and that this led to the exclusion of certain evidence at trial. Moreover, defendants failed to present any evidence supportive of plaintiffs’ “crowded field” defense (see e.g. RiseandShine Corp. v PepsiCo, Inc., 41 F4th 112, 123 [2d Cir 2022][“[I]n a crowded field of similar marks, each member of the crowd . . . is relatively weak in its ability to prevent use by others in a crowd”] [internal quotation marks omitted]). Accordingly, defendants have not conclusively established a defense to these claims as a matter of law (see CPLR 3211[a][1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314[*3], 326 [2002]). Therefore, the motion court should not have dismissed these claims. Contrary to defendants’ contention, at this early stage of the action, it is not speculative for plaintiffs to allege that, but for defendants’ negligence in this regard, the jury would have returned a favorable verdict, particularly where plaintiff had identified specific acts and omissions by defendants that resulted in documents relevant to a “crowded field” defense not being placed before the jury. The documentary evidence proffered by defendants also did not otherwise establish, as a matter of law, that the allegedly negligent acts or omissions of defendants in this regard were harmless.”

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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.