Mensch v Calogero 2023 NY Slip Op 30621(U) February 28, 2023 Supreme Court, New York County Docket Number: Index No. 155795/2022 Judge: Dakota D. Ramseur reaches an unusual outcome where the legal malpractice claim is dismissed yet the breach of contract claim remains viable.

“According to the complaint, on October 9, 2017, plaintiff retained defendant Cohen Clair, Lans Greifer, Thorpe Rottenstreich, LLP (law firm), including Michael Calogero and Bernard E. Clair in the underlying divorce action between plaintiff and her ex-husband in New York Supreme Court, New York County, entitled Peter Mensch v. Louise Mensch (index no. 309381/2017). The parties in the underlying divorce action contested the division of their assets. The divorce action settled pursuant to the July 19, 2019, filing of the so-ordered stipulation, providing for, among other things, the division of the parties’ marital property.

Plaintiff alleges that she discovered certain state and federal income tax overpayments in the total amount of $1.1 million made from accounts that were, at the time of the overpayment, parts of the marital estate, after entering into the stipulation. Plaintiff alleges that the law firm’s failure to discover the tax refund amounts and the omission of those amounts in the stipulation constitute legal malpractice. Plaintiff further alleges that defendants failed to adequately divide the estate as required by the retainer agreement between plaintiff and defendants. The retainer agreement drafted by defendants and executed by both parties, describes the scope of services to
be provided by defendants to plaintiff, including that defendants “[ w ]ill explain to you the laws pertinent to your situation, available options and the attendant risks.”

Plaintiff commenced this action alleging that defendants, through omission and negligent acts, failed to advise plaintiff that there was $1. l million in tax overpayments made from accounts which were part of the marital estate or that a potential tax refund would be an asset class to investigate. Plaintiff further alleges that completely failed to take into account any possibility of marital funds being held by any tax authority in the drafting and negotiation of the Settlement Agreement. As a result, plaintiff alleges, she entered into the settlement agreement without knowing the true value of the marital assets. Had she known, plaintiff alleges, she would not have ent.ered into the agreement.

In relevant part, the stipulation states that defendants have engaged in extensive
discovery in the underlying action. The stipulation further states that:
“[b ]oth parties expressly acknowledge that after due deliberation and careful
analysis, they have instructed their attorneys not to continue to trial in this
Action, or to seek further disclosure, inspection, depositions, or investigation of
the other’s assets and income. Each party acknowledges that he/she is sufficiently
satisfied with the disclosure received to date”.”

” Here, plaintiff states a cause of action for legal malpractice against defendants by alleging that plaintiff retained defendants to represent her interest in the underlying divorce action against her ex-husband, that defendants were negligent in failing to conduct a basic line of necessary investigations and inquiry regarding tax liabilities or obligations of the marital estate, and as a result, defendants were unable to properly advise plaintiff and limited the ability of plaintiff to knowledgeably participate in the negotiations in the division of marital assets-reducing her portion of the assets divided ..However, defendants demonstrate that plaintiffs claim is precluded by the settlement
agreement. In DeGregorio v Bender, 4 AD3d 384, 385 [2d Dept 2004]), Appellate Division, Second Department reversed the lower court’s denial of the defendants’ motion for summary dismissal of plaintiffs claims for legal malpractice, finding that the claim was “[b]elied by the terms of the stipulation and her approval of those terms in open court” (id.). Specifically, the court in DeGregorio determined that “[t]he parties explicitly acknowledged that they had been advised by their respective attorneys of their right to disclosure regarding the value of their property and business interests, that certain disclosure had been conducted, and that to the extent it had not been conducted, they waived their right to any further disclosure” (id. at 385).

Here, like in DeGregorio, the stipulation indicates that plaintiff was satisfied with the
discovery received as of the date of the settlement of the underlying action and further, plaintiff explicitly waived the opportunity to investigate further into the assets that made up the marital estate (see Karakash v Trakas, 163 AD3d 788, 790 [2d Dept 2018] [“stipulation of settlement in the divorce action, and a transcript from the divorce proceeding on the day the stipulation was signed by the parties” … “flatly refuted the plaintiff’s allegation that the defendant had failed to engage in the necessary due diligence to determine.the identity and value of the marital assets involved in the underlying divorce action”]).”

“The Court declined to dismiss plaintiff’s claim for breach of contract. Defendants’
arguments concerning plaintiffs breach of contract claim are focused on the circumstance where a legal malpractice claim is predicated upon the same fact and seeks the same relief as a breach of contract claim (see Sabo v Alan B. Brill, P.C., 25 AD3d 420, [1st Dept 2006]; Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500,501 [1st Dept 2011]). In those circumstances, the breach of contract duty claim is duplicative and should be dismissed. However, as discussed above, plaintiffs legal malpractice claim is dismissed. As defendants’ do not argue an independent basis
to dismiss the breach of contract claim, that branch of defendants’ motion is denied.”

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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.