Professional malpractice cases (Medical, Legal, Accounting) require either prior transactions or prior litigation. in Weight v Day 2023 NY Slip Op 02350
Decided on May 3, 2023 Appellate Division, Second Department we see how prior litigation can end the professional malpractice case because liability has already been compromised.

“The plaintiff jointly owned and operated a business known as Weight Steel Construction, Inc. (hereinafter Weight Steel), with her former husband, nonparty Joseph Weight. In September 2009, while the plaintiff and her former husband were engaged in divorce proceedings, they hired the defendant Wayne Day, a certified public accountant and a partner at the defendant accounting firm, Day Seckler, LLP, to serve as trustee of Weight Steel until the divorce was final. In February 2014, the plaintiff commenced this action against the defendants, inter alia, to recover damages for accounting malpractice and breach of fiduciary duty. The plaintiff alleged, among other things, that Day failed to prevent her former husband from needlessly using Weight Steel’s assets for his personal gain and failed to properly manage Weight Steel, which caused the demise of that corporation.

In May 2019, the defendants moved for summary judgment dismissing the complaint, arguing, inter alia, that this action was barred by the doctrine of collateral estoppel. The defendants contended that, in the divorce action, the Supreme Court had rejected the plaintiff’s claim that misconduct by her former husband, “with the assistance of others,” caused the demise of Weight Steel and detrimentally impacted the value of her interest in that corporation. The defendants also argued, among other things, that the plaintiff’s claims were based on wrongs to the corporation, which could only be asserted through a derivative action and not in the plaintiff’s individual capacity. The Supreme Court granted the defendants’ motion, and entered a judgment dismissing [*2]the complaint. The plaintiff appeals, and we affirm.

The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same” (Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 589; see Buechel v Bain, 97 NY2d 295, 303). To apply the doctrine, “[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d at 303-304; see Moore v Kronick, 187 AD3d 892, 893). Here, the evidence submitted by the defendants in support of their motion, including excerpts from the transcript of the plaintiff’s deposition testimony and a decision after trial in the divorce action, demonstrated, prima facie, that the issue of whether the plaintiff’s former husband engaged in misconduct causing, inter alia, a diminution in the value of Weight Steel, was raised and necessarily decided against the plaintiff in the divorce action, and the plaintiff had a full and fair opportunity to litigate the issue in that action (see Karakash v Trakas, 163 AD3d 788, 789; Berardi v Berardi, 108 AD3d 406, 407). Therefore, the defendants demonstrated that the doctrine of collateral estoppel precluded the plaintiff from relitigating that issue in this action.”

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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.