O’Keefe v Barra 2023 NY Slip Op 01829 Decided on April 6, 2023 Appellate Division, Third Department is the kind of case that defendant attorneys (and their insurers) point to as “bad” legal malpractice cases…those that are made in counterclaims to fee lawsuits by the attorney against the client. In this case, attorney wins the claim and client loses.

“Defendant, a dentist, and her then-husband, an attorney, entered into a separation agreement in February 2011. In January 2013, defendant commenced an action seeking a divorce due to their having “lived separate and apart pursuant to” that agreement for over a year or, in the alternative, due to the irretrievable breakdown of the marriage (Domestic Relations Law § 170 [6]; see Domestic Relations Law § 170 [7]). Defendant’s husband answered and counterclaimed both to set aside the separation agreement and for a divorce based upon the irretrievable breakdown of the marriage. After the trial in the action began in December 2013, defendant became concerned about how her then-attorney was handling the matter and retained plaintiff to represent her going forward. Plaintiff did so by moving for, among other things, an order directing defendant’s husband to pay child support as directed by the separation agreement as well as for belated permission to present expert testimony at trial, and then seeing the trial through to its conclusion. Following trial, Supreme Court (Breslin, J.) issued a judgment in July 2015 that declined to set aside the separation agreement, dismissed the counterclaims and granted defendant the conversion divorce that she had sought.”

“Turning first to the April 2022 order granting plaintiff’s motion for summary judgment, plaintiff established a prima facie claim for account stated via proof that defendant executed a retainer agreement and that plaintiff regularly sent defendant invoices for her fees and expenses that were retained without objection (see Schlenker v Cascino, 124 AD3d 1152, 1153 [3d Dept 2015], lv denied 25 NY3d 904 [2015]; Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 [3d Dept 2013]). Similarly, plaintiff satisfied her initial burden of establishing her breach of contract claim with evidence that she had performed her obligations under the retainer agreement, as well as “various invoices which reflect that defendant failed to pay” plaintiff’s fees and expenses (George S. May Intl. Co. v Thirsty Moose, Inc., 19 AD3d 721, 722 [3d Dept 2005]; see Saint James’ Episcopal Church v F.O.C.U.S. Found., 47 AD3d 1058, 1059 [3d Dept 2008]; Bombardier Capital v Reserve Capital Corp., 295 AD2d 793, 794 [3d Dept 2002]).

The burden accordingly shifted to defendant to raise a material question of fact on those claims, which she endeavored to do in an unsworn, albeit notarized, “response.” With regard to plaintiff’s account stated claim, defendant asserted, without corroboration, that she had objected to the invoices at various points, but those “self-serving, bald allegations of oral protests were insufficient to raise a triable issue of fact as to the existence of an account stated” (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; accord Schlenker v Cascino, 124 AD3d at 1153). As for plaintiff’s breach of contract claim, defendant focused, in relevant part, upon what she perceived as deficiencies in plaintiff’s performance under the retainer agreement.[FN1] That said, defendant obtained the relief she had demanded in her divorce complaint as a result of plaintiff’s representation — representation that, to reiterate, began after discovery had been completed and a trial was underway — and defendant provided nothing beyond her own speculation to suggest that the additional legal steps she purportedly sought from plaintiff, to the extent that they were within the scope of the representation, would have succeeded at that late date or that plaintiff’s failure to take them actually damaged her. As such, defendant also failed to raise a material question of fact with regard to either the performance or damages elements of plaintiff’s breach of contract claim (see e.g. Bullock v Miller, 145 AD3d 1215, 1217-1218 [3d Dept 2016]; Miazga v Assaf, 136 AD3d 1131, 1134 [3d Dept 2016], lv dismissed 27 NY3d 1078 [2016]; Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328-1329 [4th Dept 2016], lv dismissed 28 NY3d 942 [2016]). It follows that, as a result, plaintiff’s motion for summary judgment was properly granted[*3].

Finally, with regard to the July 2022 order, we agree with plaintiff that her motion seeking an award of prejudgment interest should have been granted. Supreme Court faulted plaintiff for waiting until 2020 to commence this action to recover monies owed as a result of a legal representation that ended in 2015 but, as prejudgment interest only compensates the judgment creditor for the loss of use of money he or she was owed and is not a penalty, the “responsibility for the delay [in bringing suit] should not be the controlling factor in deciding whether interest is to be computed” (Love v State of New York, 78 NY2d 540, 544 [1991]; see NML Capital v Republic of Argentina, 17 NY3d 250, 266 [2011]; Spodek v Park Prop. Dev. Assoc., 96 NY2d 577, 581-582 [2001]; Gizzi v Hall, 309 AD2d 1140, 1142 [3d Dept 2003]). Rather, prejudgment interest in a breach of contract action is required by CPLR 5001, running “from the earliest ascertainable date on which the prevailing party’s cause of action existed ‘[or,] if that date cannot be ascertained with precision, . . . from the earliest time at which it may be said the cause of action accrued’ ” (Ogletree, Deakins, Nash, Smoak & Stewart v Albany Steel, 243 AD2d 877, 880 [3d Dept 1997], quoting Govern & McDowell v McDowell & Walker, 75 AD2d 979, 980 [3d Dept 1980]; see CPLR 5001 [b]; Danka Off. Imaging Co. v General Bus. Supply, 303 AD2d 883, 886 [3d Dept 2003]). Supreme Court determined in the April 2022 order that plaintiff’s claim for breach of contract accrued when she completed her legal services on May 23, 2015. Thus, plaintiff was entitled to prejudgment interest running from that date.”

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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.