Stevens v Wheeler 2023 NY Slip Op 02747 Decided on May 18, 2023 Appellate Division, First Department is the rare Estate legal malpractice case that survives a dismissal motion. It adequately demonstrates standing, proximate damages and that “but for” the choice of law provision, there would have been a better outcome for the Estate. A defense of strategy is rejected as “bare.”

“Plaintiffs, as co-executors of the decedent’s estate, essentially claim that defendants negligently failed to include a New York choice of law provision in decedent’s will and negligently recommended that decedent’s will be probated in Rhode Island rather than New York. According to plaintiffs, this resulted in decedent’s wife claiming an elective one-half share of the net estate under Rhode Island law, rather than the one-third of his net estate that decedent had bequeathed to her in his will. Decedent’s wife’s elective share claim was ultimately settled by stipulation.

Plaintiffs’ legal malpractice cause of action should not have been dismissed under CPLR 3211 (a) (1) or CPLR 3211 (a) (7) (see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). The complaint adequately pleaded departure from the standard of care, i.e., failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and proximate cause. Defendants did not establish, as a matter of law, that probate would have been the same regardless of whether the will contained a New York choice of law provision or whether probate was sought in New York instead of Rhode Island. Defendants’ overarching position, that decedent’s wife did not have a statutory right to decline decedent’s bequest and elect to receive one-half of decedent’s net estate under Rhode Island law, is incorrect (RI Gen Laws §§ 33-1-10, 33-28-1, 33-28-4 [a]). Defendants’ bare assertion, that their recommendation of Rhode Island as the probate forum was a reasonable strategic decision under the circumstances, is not persuasive at this stage of the case (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]).

The settlement of the wife’s elective share claim does not utterly refute plaintiffs’ allegations of proximate cause because the complaint supports the inference that the settlement was effectively compelled by defendants’ malpractice (see Bernstein v Oppenheim & Co., 160 AD2d 428, 429-430 [1st Dept 1990]). Although the complaint does not allege any cognizable pecuniary damage to decedent’s estate, plaintiff Hardie Stevens’s affidavit corrects that deficiency by identifying several categories of damages to the estate, including increased taxes and legal fees (see Estate of Schneider v Finmann, 15 NY3d 306, 309-310 [2010]; Rudolf, 8 NY3d at 443; Leon v Martinez, 84 NY2d 83, 88 [1994]). Defendants’ remaining arguments relating to damages are not persuasive on [*2]this 3211 motion.

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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.