Van Ravenstein v Ponder 2023 NY Slip Op 33072(U) September 6, 2023 Supreme Court, New York County Docket Number: Index No. 161420/2019 is an interesting opinion from Judge Shlomo S. Hagler in which he rejects defenses of collateral estoppel and res judicata. Often, in similar settings, these defenses succeed.

“In the underlying action, All in the Works, LLC (AITW), a creator and producer of film
and digital content, alleged that in 2016 it entered into a contract with Cleveland, a fashion model, to produce a documentary film detailing certain aspects of Cleveland’s life. According to AITW, Cleveland breached the contract by failing to cooperate with the production of the film, instead signing on to produce a different documentary with Next Management, LLC (Next).

AITW initiated the underlying action seeking to recover damages against Cleveland for breach of contract and breach of the implied covenant of good faith and fair dealing, and to recover damages from Next for tortious interference with contract (Record in Underlying Action, NYSCEF Doc. Nos. 9 & 25). On April 19, 2018, AITW stipulated to discontinue the underlying action insofar as asserted against Next.

In the meantime, Cleveland was served with the summons and complaint in the
underlying action on or about February 13, 2017. After Cleveland failed to appear or answer, AITW moved for leave to enter a default judgment against her on the issue of liability. In an order, dated June 11, 2018, the court granted the motion without opposition and ordered an immediate trial on damages.

On June 25, 2018, Cleveland entered into a retainer agreement with Ponder, pursuant to
which Ponder agreed to represent her in the underlying action and Cleveland paid Ponder a $5,000 retainer (NYSCEF Doc. No. 3). On July 12, 2018, Ponder filed a notice of appearance and a jury demand, along with a document entitled “Notice of Rejection,” purporting to “reject” the note of issue filed by AITW. However, Ponder took no steps to vacate the default judgment against Cleveland.”

“Cleveland thereafter retained new counsel. On October 4, 2019, Cleveland’s new
counsel moved to vacate Cleveland’s default, arguing that Cleveland’s failure to appear or respond was not intentional or part of a pattern of neglect, but rather the direct result of Ponder’ s incompetence.

By order, dated May 7, 2020, the court denied the motion, reasoning as follows:
“The sole excuse offered by Cleveland in support of the motion is her
allegation that her failure to appear was due to incompetence and malpractice
on the part of her attorney. At the outset, this excuse is deficient as Cleveland
defaulted in appearing in this action prior to engaging her attorney and the
filing of his notice of appearance. Further, even if a portion of the delay is
attributable to her attorney, this excuse, substantiated by Cleveland’s
conclusory affidavit, is insufficient particularly in light of the pattern of neglect
in this case. Cleveland failed to answer despite personal delivery of the
summons and complaint. The motion to strike her jury demand was ‘granted
on default’ and neither Cleveland nor her attorney appeared at the inquest.
Only nearly a year after entry of judgment did Cleveland move to vacate her
Inasmuch as movant failed to demonstrate a reasonable excuse for her default
‘ it is unnecessary to determine whether Cleveland has shown the existence of a
potentially meritorious defense. Even if the court were to assume a reasonable
excuse were proffered, Cleveland’s posited defenses to the motion and action
lack merit”

“Ponder’s contention that the amended complaint should be dismissed pursuant to CPLR 3211 (a) (5) as barred by the doctrine of res judicata is also without merit. “[U]nder res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties, or those in privity with them, on any claims arising out of the same transaction or series of transactions … even if based upon different theories or if seeking a different remedy” (East Hampton Capital LLC v Fergusson, 183 AD3d 409, 409-410 [1st Dept 202.0][internal quotation marks and citations omitted]). “Since res judicata precludes relitigation of issues actually litigated and resolved in a prior proceeding, the party seeking to invoke the doctrine of res judicata must demonstrate that the critical issue in a subsequent action was decided in the prior action and that
the party against whom estoppel is sought was afforded a full and fair opportunity to contest such issue” (Gomez v Brill Sec., Inc., 95 AD3d 32, 35 [1st Dept 2012]).

Here, Cleveland’s claims against Ponder in the present action do not arise out of the same transaction or series of transactions as those raised in the underlying litigation which involved the alleged breach of a contractual agreement between Cleveland and AITW regarding the production of a documentary film. In addition, Cleveland was not afforded an opportunity to contest the issue of Ponder’s inadequate representation in the underlying action. Therefore, the claims in the instant action are not barred by res judicata.

To the extent Ponder is arguing that the doctrine of collateral estoppel precludes
Cleveland’s malpractice claim against him, this contention also lacks merit. “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 or those in privity” (Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]). At issue in the instant action is whether Ponder was negligent in his representation of Cleveland in the underlying action, including his failure to prepare for, or appear at, the hearing on damages. The underlying action neither addressed nor decided this question. As such, there is no identity of issues necessary to sustain application of collateral estoppel.”

Email this postTweet this postLike this postShare this post on LinkedIn
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.