Kralik v Marai 2023 NY Slip Op 02588 Decided on May 11, 2023
Appellate Division, First Department is an example of the many issues that confront a legal malpractice claim. Statute of limitations, service of process and the application of CPLR 3211(a)(1) in analysis of the “but for” case-within-a-case principle.

“Contrary to the court’s determination, plaintiff’s claim for legal malpractice was not barred by the three-year statute of limitations (CPLR 214[6]). Although the claim accrued on November 4, 2017, when defendant filed for arbitration of the underlying claims on plaintiff’s behalf, the statute of limitations was tolled until the conclusion of the arbitration proceeding on October 10, 2018, when the underlying claims were dismissed, under the continuous representation doctrine (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). Defendant’s representation of plaintiff in the arbitration proceeding pertained to the same subject matter as that underlying the legal malpractice claim (see id.see also Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018], lv denied 32 NY3d 911 [2018]). Accordingly, this action, commenced August 3, 2021, was timely.

Plaintiff does not dispute that defendant was improperly served the summons and complaint and, contrary to plaintiff’s contention, defendant did not waive her jurisdictional defenses. Defendant’s nonresponse to plaintiff’s waiver request did not amount to an intentional relinquishment of her rights (see EchoStar Satellite L.L.C. v ESPN, Inc., 79 AD3d 614, 617-618 [1st Dept 2010]).

Even if defendant’s jurisdictional defenses were waived, the documentary evidence utterly refuted plaintiff’s allegations that defendant failed to adequately apprise him of the deficiencies of his underlying claims before commencing the arbitration proceeding (see CPLR 3211[a][1]; Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 538-539 [1st Dept 2019]). The evidence established that plaintiff opted to pursue arbitration despite defendant’s advice regarding the weaknesses of his claims, refuting plaintiff’s contention that, but for defendant’s inadequate advice, he would not have proceeded to arbitration and incurred the associated legal fees and costs. The documentary evidence also established that defendant’s representation comported with the terms of the parties’ retainer agreement. “

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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.