Kadah v Kadah 2023 NY Slip Op 32889(U) August 18, 2023 Supreme Court, New York County Docket Number: Index No. 152026/2022 Judge: Richard Latin concerns a legal malpractice claim brought in New York concerning legal work performed in a Florida estate. Where should the claim be brought and if brought in NY is it materially inconvenient?

“This action stems from alleged malpractice in the handling of a legal matter relating to
plaintiff’s ownership of International Controls and Measurements Corp. (“ICM”), specifically the alleged failure to file a claim that plaintiff owned 3,160 shares of ICM stock prior to the November 1, 2016 deadline to make such a claim. It is uncontested that no timely claim was filed. However, H&K argue that they were not retained to represent Kadah individually, but rather in his role as Administrator ad litem over the company. Defendant H&K further asserts that ownership of shares in ICM could not be established despite best efforts, due to significant issues with corporate records.”

“Defendant H&K alternatively moves to dismiss plaintiff’s amended complaint pursuant to CPLR 327 by arguing that Florida is the appropriate venue for this action. It is uncontested that the probate proceeding was administered in Florida pursuant to Florida law and that H&K utilized Florida attorneys and maintained their files relating to the case in Florida.”

“Plaintiff argues that Defendant H&K is a multinational law firm with numerous offices,
including the New York office that plaintiff interacted with when he first retained the firm and that the inconvenience of Florida for plaintiff, a New York resident, would render Florida the forum non conveniens. Plaintiff acknowledges that the probate court proceeding was in Florida and under Florida law but argues that the legal work performed during the period in which the malpractice was alleged to have occurred – between July 2016 and November 2016 – took place mostly in New York and submits billing documentation in support. Lastly, plaintiff argues that numerous ICM attorneys, accountant and board members who would be potential witnesses are based in New

After carefully weighing the relevant factors, the critical difference between this case and Rosenberg is that the plaintiff is not a resident or domiciled in Florida which sufficiently adjusts the calculus so as to necessitate a different result (id.). While the probate proceeding was in Florida, the legal work performed during the relevant period largely occurred in New York. Furthermore, it is uncontested that the relevant Florida filing deadline was missed and instead the dispute relates to the nature of the relationship between the parties created by the contractual relationship formed
in New York and the performance of the obligations stemming therefrom – issues which do not require a New York court to apply or interpret Florida law to such an extent that a Florida court would be significantly better positioned to appropriately handle the matter.

Meanwhile the burden on requiring an individual plaintiff who does not have a residence or domicile in Florida to pursue this action in Florida is prejudicial and creates significant practical difficulties. Defendant H&K argues that plaintiff has already demonstrated that he can pursue litigation in Florida due to his conduct in the probate court proceeding and that plaintiff is currently pursuing litigation relating to the probate court pending in Florida, but plaintiff has no alternative than to pursue those actions in Florida. However, this action – unlike those actions – has a considerable and sufficient nexus to New York to pursue the action here and Plaintiff need not be prejudiced by an inconvenient forum where he did not elect to pursue this action simply because he had no choice but to litigate a separate action in that forum. “[U]nless the balance is strongly in favor of the [moving party], the plaintiff’s choice of forum should rarely be disturbed.” (Swaney, 158 AD3d at 438). Here, the balance is not strongly in defendant H&K’s favor and plaintiff’s choice of forum should not be disturbed – particularly where litigating this action in Florida would present a clear and prejudicial burden on plaintiff.”

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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.