Kleinberg v Pellegrini & Assoc., LLC 2023 NY Slip Op 31196(U) April 3, 2023
Supreme Court, New York County Docket Number: Index No. 154718/2014
Judge: Shlomo S. Hagler is an example of how an unopposed motion for summary judgment will almost always be the end of the case. Here, the legal malpractice claim was that certain medical and factual issues were not brought up at the underlying trial stage. However, there was nothing for the court to rely upon in this summary judgment setting.

“In this action alleging legal malpractice, breach of fiduciary duty and breach of contract, defendants Pellegrini & Associates, LLC and Frank L. Pellegrini ( collectively, “Pellegrini” or “defendants”) move for summary judgment pursuant to CPLR § 3212 dismissing all the claims asserted by plaintiff David Kleinberg (“Kleinberg”). In support of their motion, defendants submit the Affidavit of Christopher T. McGrath, Esq., sworn to on November 24, 2020 (NYSCEF Doc. No. 89) (the “McGrath Affidavit”), attesting that the legal representation rendered by Pellegrini in the subject underlying action was not a departure from the requisite standard of care, and the affidavit of Frank L. Pellegrini, sworn to on November 23, 2020 (NYSCEF Doc. No. 88) (the “Pellegrini Affidavit”). Kleinberg has failed to submit opposition to the subject motion.”

“This is a legal malpractice action commenced by Kleinberg in connection with
Pellegrini’s representation of Kleinberg in an underlying personal injury action. On or about November 1, 2004, Kleinberg commenced an action against the driver and owner of a motor vehicle involved in a motor vehicle accident (the “Underlying Action”). 1 Pellegrini was retained by Kleinberg in the Underlying Action, after the note of issue was filed and after the court (Sup Ct Westchester County, Hon. Joan B. Lefkowitz, J.S.C.) granted Kleinberg’s motion for summary judgment on liability. On March 18, 2011, the jury rendered a verdict in favor of the underlying defendants and awarded Kleinberg no damages (Pellegrini Affidavit, ,r 138 [NYSCEF Doc. No. 88]; Underlying Trial Transcript Part 2, at 545-547 [NYSCEF Doc. No. 80])

Essentially plaintiff is alleging that Pellegrini committed legal malpractice during the trial stage of the Underlying Action by failing to successfully undertake to have certain medical evidence and lay witness evidence admitted at trial and to “un bifurcate” the trial in order to introduce evidence on liability.2 Kleinberg alleges that “but for” the negligence of defendants, “plaintiff would have been able to demonstrate that he suffered serious physical injury, traumatic brain injury, permanent loss of the quality and quantity of vision, permanent nerve injury, injury to cerebral nerves with sequelae, along with other injuries and that the operator of the truck was negligent, and proximately injured him.” Plaintiff further alleges he “would have been able to
demonstrate that the physical, cognitive and emotional injuries were proximately caused by the negligent operation by LK Comstock & Company Inc., and its driver, and that such negligence damaged plaintiff (Complaint 1137-39 [NYSCEF Doc. No. 44]).”

“The Pellegrini defendants have met their prima facie burden demonstrating that they did not depart from the requisite standard of care (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50 [2015] citing Dombrowski v Bulson, 19 NY3d 347 [2012]). In support, Pellegrini proffers the McGrath Affidavit and the Pellegrini Affidavit. The record reflects that Pellegrini in fact introduced evidence during the trial of the Underlying Action that plaintiff claims were omitted at trial. In addition, notwithstanding plaintiffs claims, although the underlying trial court excluded the SPECT scan from evidence, the record reflects that Pellegrini provided timely disclosure of such scan and made efforts to seek disclosure of the scan at trial. Plaintiffs allegations that Pellegrini departed from the standard of care in failing to introduce evidence of certain of plaintiffs injuries and evidence of lost income, or call lay
witnesses at trial have no merit. “[A]n attorney’s selection of one among several reasonable courses of action does not constitute malpractice” ( Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292, 293 [1 st Dept 2008]; see Dweck Law Firm v Mann, 283 AD2d 292,293 [1st Dept 2001] [internal citations omitted] [“Attorneys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice, so that a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed”]). Plaintiffs claim that Pellegrini was negligent in failing to re-open the issue of liability at trial is likewise without merit. The issue of liability would not generally be permitted at a damages only trial (McGrath Affidavit, ,r,r 7-9).”

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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.