In Fierro v Yellen 2022 NY Slip Op 32959(U) August 31, 2022 Supreme Court, Kings County Docket Number: Index No. 523796/2021 Judge: Ingrid Joseph, a case that wended its way through Kings Supreme, and on to the Second Department, everyone in the proceedings take fluid positions on whether there was fraud, whether there was a good class action and on Judiciary Law 487.

The facts are way too long to excerpt here. Here are a portion:

“On August 2, 2000, Cyber-Struct, Inc. (“Cyberstruct”)2, as general contractor, entered into a Standard Form of Agreement (“the contract”) with Dean Boerum Owners, Inc. (“DBO”), as the owner, to construct a new, three-story building containing 21 apartments at 119-125 Boerum Place, 42 Dean Street,· in Brooklyn, New York (“the property”). Pursuant to the contract, Cyberstruct was responsible for the coordination of the construction of the project, and its responsibilities included retaining subcontractors and material suppliers, as necessary,· and paying them for their work and the materials provided by them. Cyberstruct alone (not DBO) was to compensate its subcontractors and material suppliers by using funds paid to Cyberstruct by DBO. Cyberstruct’s contract with DBO required Cyberstruct to complete an American Institute of Architects Application and Certificate for payment at the end of each pay period in order to be paid by DBO. Once Cyberstruct received its funds from DBO, it was obligated, pursuant to the contract and the Lien Law, to forward the appropriate payment to each subcontractor or materialman who applied for payment.

DBO terminated the contract with Cyberstruct in April 2002. According to plaintiffs, at that time, DBO owed Cyberstruct $328,286.49 on the contract. Approximately $160,000 of said sum was retainage, i.e., money earned by the general contractor, but held by the owner, pending job completion. At a meeting held in April 2002 between DBO and Cyberstruct, Cyberstruct presented Philip Mendlow (“Mendlow”), the president of DBO, with a spreadsheet dated April 25, 2002, which indicated that 19 of its subcontractors, suppliers, and/or vendors were owed $353,566.93. Cyberstruct, however, alleges that this amount was the amount owed only if the contract had been fully performed.
Plaintiffs allege that Mendlow entered into a series of executed assignments with
not less than eight of Cyberstruct’s subcontractors and suppliers, one of whom was J.C.
Ryan, a supplier of architectural doors, frames, and finish hardware. The assignment between J.C. Ryan and DBO was dated May 2, 2002 (NYSCEF Doc No. 89), and was executed by Schnipper, who was J.C. Ryan’s President and Chief Executive Officer.
There was also an assignment dated May 2, 2002 by A&A Cibco Construction Inc., an
assignment dated May 2, 2002 by Alta Recycling, an assignment dated May 2, 2002 by
Bay Ridge Mechanical Corp., an assignment dated May 7, 2002 by Express Contracting
Corp., an assignment dated May 6, 2002 by Kamco Supply Co., an assignment dated May 2002 by Empire Restoration Corp., and an assignment dated June 21, 2002 by
Professional Tile Contracting Corp.”

Similarly, since plaintiffs’ first cause of action pursuant to Judiciary Law§ 487 is predicated on the same transactions and could have be~n raised in the class action, this
cause of action is also barred bythe doctrine ·of res judicata. In this regard, it is noted that plaintiffs’ Judiciary Law § 487 claim was specifically raised by them in the bankruptcy proceeding, and the bankruptcy court, in a decision and order dated March 31, 2020, ruled that plaintiffs should have sought their remed[y] in the case in which -the wrongdoing allegedly was committed (NYSCEF Doc No. 24 at 15, In re Fierro, 616 BR 596, 608 [Bankr ED NY 2020], quoting Alliance Network, LLC v Sidley Austin LLP, 43 Misc 3d 848, 858 [Sup Ct, NY County 2014 ]). It is binding precedent that the rules of res judicata apply to the decisions of a bankruptcy court” (Winkler v Weiss, 294 AD2d 428, 429 [2d Dept 2002]).”

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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.