Silverman v Greenberg 2023 NY Slip Op 32993(U) August 28, 2023
Supreme Court, New York County Docket Number: Index No. 450304/2021
Judge: Louis L. Nock is a case in which Plaintiff strikes out. Three pitches, three strikes.

“In this legal malpractice action, Secured Worldwide, LLC (“Secured”), predecessor in
interest to American Diamond Mint LLC, and its principal, plaintiff Arthur Joseph Lipton, were represented by defendants in a federal action captioned Secured Worldwide, LLC v Kinney (No. 15 Civ. 1761, U.S. Dist. Ct., S.D.N.Y.) (the “Federal Action”). Plaintiffs herein claim that defendants committed the following acts of malpractice: failing to object to the consideration of evidence and testimony that was assertedly precluded under an earlier order of the court in the Federal Action; failing to question a witness regarding potential impeachment information; and failing to take an appeal of the adverse decision rendered in the Federal Action against Secured. Plaintiffs assert that the adverse decision was then used as the basis for a collateral estoppel finding in other action involving plaintiffs, the end-result of which led to Secured and Lipton declaring bankruptcy.”

“Plaintiffs’ argument that defendants failed to adequately object to the consideration of certain evidence and testimony regarding Secured’s relationship with nonparty GemShares is undermined by the federal District Court’s supplemental order
(NYSCEF Doc. No. 15) clarifying a prior in limine order (NYSCEF Doc. No. 4), which clarified that: “the in limine ruling does not bar either party from introducing evidence about (1) the relationship between GemShares and Secured Worldwide; (2) how Kinney became involved with Secured Worldwide . . . . Kinney’s time at GemShares provides necessary background for the claims in suit.” (NYSCEF Doc. No. 15 at 1 [emphasis added].) Thus, the court in the Federal Action had expressly held that the evidence and testimony to which plaintiffs assert defendants should have objected, was admissible”

“Additionally, and as a general matter, disagreement with an attorney’s reasonable
strategic and tactical choices is not grounds for malpractice (Iocovello v Weingrad & Weingrad, LLP, 4 AD3d 208 [1st Dept 2004]), and “hindsight . . . is an unreliable test for determining the past existence of legal malpractice” (Sklover & Donath, LLC v Eber-Schmid, 71 AD3d 497, 498 [1st Dept 2010] [internal quotation marks and citations omitted]). Further, and specifically with regard to defendants’ asserted failure to elicit impeachment evidence from a witness, the trial testimony shows that the witness had no recollection of a conversation with Kinney regarding the patent involved in the underlying dispute in the Federal Action (see, NYSCEF Doc. No. 19 at 4-5). It is unreasonable to expect that defendants should have then attempted to get the witness to impeach his own testimony after claiming that he had no recollection.

Finally, plaintiffs do not dispute that Lipton instructed defendants not to appeal the
verdict against Secured (email exchange, NYSCEF Doc. No. 20). Whether to take an appeal after an adverse judgment, is committed to the client rather than the attorney (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.2[a] [“a lawyer shall abide by a client’s decisions concerning the objectives of representation”]). Moreover, on appeal of the verdict of the court after a bench trial, the court’s findings of fact are subject to a “clear error” standard of review (Atlantic Specialty Ins. Co. v Coastal Envtl. Group Inc., 945 F3d 53, 63 [2d Cir 2019]). Plaintiffs fail to allege that an appeal would have been successful, as they do not allege facts showing that they could have reached the “clear error” standard. Accordingly, they have also failed to demonstrate that the failure to appeal was a proximate cause of any of their damages.”

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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.