Creadore v Rosenberg & Estis, P.C. 2023 NY Slip Op 31253(U) April 19, 2023
Supreme Court, New York County Docket Number: Index No. 155690/2022
Judge: Lyle E. Frank is an illustration of what happens when attorneys are terminated and then the underlying case settles while attorney # 2 is representing Plaintiff (or Plaintiff is pro-se).

“Plaintiff hired defendant lawyers to represent him in a real estate sales deposit dispute in New York. Plaintiff as the seller believed that the purchasers violated the “best efforts” provision in the sales contract, and he had reason to keep the entire deposit. Defendants did not raise the “best efforts” standard in their answer to the action commenced by purchasers in federal court and only recouped half of the deposit. Plaintiff believed the omission is a legal malpractice and filed the suit in this court, alleging twelve causes of action, including malpractice, defamation, accounting, conversion, and violation of Judiciary Law § 487, etc. Defendants filed the motion to
dismiss all the claims pursuant to CPLR § 3211 (a)(l), (a)(7) and the doctrine of “duplicative claims”.

“Here, plaintiff failed to plead a cognizable legal malpractice claim. First, failure to raise
the “best efforts” standard to which agreed by purchasers in the sales contract could be deemed as a professional negligence by defendants. A party’s promise to use best efforts is valid consideration, and, where it is clear from the language of an agreement that the parties intended to be bound, and there exists an objective method for supplying a missing term, the parties should be held to their bargain. Maestro W Chelsea SPE LLC v. Pradera Realty Inc., 38 Misc. 3d 522, 525.


Here, in the rider to the sales contract, purchasers promised to use best efforts to “comply promptly with reasonable requests made by the Board.” See NYSCEF Doc. No. 18, page 10. An interview request from the Board is a reasonable one and failure to comply with it is a breach of the promise, thus making it the basis for plaintiff to object to refund of the deposit and frustrating purchasers’ declaratory judgment motion. See NYSCEF Doc. No. 81, ,i 38. Therefore, failure to raise the “best efforts” standard in the answer to the declaratory judgement motion could be deemed as a professional negligence by defendants, the more so because they are self-proclaimed “premier real
estate” lawyers in New York City. Id. at ,i 20.


The problem is negligence alone is far from enough to build a case for legal malpractice. Plaintiff also needs to plead the actual damages and the proximate cause prongs of the test. Here, plaintiff did not elaborate on the basis for the damages sought in the complaint. The deposit amounts to $190,000 in total and plaintiff did get a portion of it in return pursuant to the final settlement agreement with the purchasers. See NYSCEF Doc. No. 52. The court couldn’t figure out why plaintiff demanded at least $350,000 for actual damages associated with the legal malpractice claim. Again, “the damages claimed in a legal malpractice action must be ‘actual and ascertainable’ resulting from the proximate cause of the attorney’s negligence. The damages
claimed cannot be too speculative and incapable of being proven with any reasonable certainty.” Zarin v. Reid & Priest, 184 A.D.2d 385, 385 [1st Dept. 1992].

Plaintiff also failed to allege that any legal malpractice by defendants proximately caused the actual damages incurred by him. The Court of Appeals stressed that “to establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence.” Rudolf at 442 ( emphasis added). After relieving defendants as counsel in the underlying case, plaintiff litigated the case prose and settled with purchasers with a number less than the full deposit. If the “best efforts” provision is the linchpin to his case, as claimed by plaintiff in the complaint, then why did he still incur certain
damages in the settlement or why didn’t he press on with the legal theory and prevail in the underlying action, given that he had full control of the proceedings then? See NYSCEF Doc. No. 49 The First Department has emphasized the burden time and again: “[a] plaintiffs burden of proof in a legal malpractice action is a heavy one. The plaintiff must prove first the hypothetical outcome of the underlying litigation and, then, the attorney’s liability for malpractice in connection with that litigation. The requirement of proving a case within a case is a distinctive feature of legal malpractice actions arising from an attorney’s alleged negligence in preparing or conducting litigation. It adds an additional layer to the element of proximate cause … ” Lindenman v. Kreitzer,
7 A.D.3d 30, 31 (emphasis added).”

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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.