Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC 2023 NY Slip Op 33130(U) September 6, 2023 Supreme Court, New York County Docket Number: Index No. 653145/2014 Judge: Nancy M. Bannon illustrates the general rule against multiple motions for summary judgment, even after an appellate reversal.

“In this action to recover damages, inter alia, for legal malpractice, plaintiffs, two related venture capital firms, move pursuant to CPLR 3212 for summary judgment (1) on the issue of liability on so much of the first cause of action as alleges that defendants, plaintiffs’ former counsel, committed legal malpractice in failing to perfect security interests in certain life insurance policies that were pledged as collateral for a series of loans made by plaintiffs to nonparty Progressive Capital Solutions, LLC (“Progressive”); and (2) dismissing defendants’ counterclaims seeking unpaid legal fees upon theories of quantum meruit and account stated (MOT SEQ 016). Defendants oppose the motion. By order dated October 31, 2022, defendants’ motion for summary judgment dismissing the complaint as against defendant Kenneth M. Gammill, Jr. was granted (MOT SEQ 017), and the instant motion was deemed amended to remove defendant Kenneth M. Gammill, Jr. The motion as amended is denied as barred by the principle of law of the case and the prohibition against successive summary judgment motions.

This is plaintiffs’ second motion for summary judgment. On December 31, 2015, plaintiffs filed their first summary judgment motion seeking the same relief – a determination of defendants’ liability on the first cause of action for legal malpractice, and dismissal of defendants’ counterclaims – based on substantially the same arguments as their present motion that defendants committed legal malpractice which proximately caused plaintiffs’ damages. By an order dated February 27, 2017, this court granted plaintiffs’ prior motion, holding that defendants negligently discharged their duty to perfect plaintiffs’ security interests, and that defendants’ counterclaims were subject to dismissal because they sought payment for the very work that constituted the alleged malpractice.
Upon the defendants’ appeal, the Appellate Division, First Department, by order dated
January 11, 2018, reversed, denied summary judgment to plaintiffs, and reinstated defendants’ counterclaims. Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479 (1st Dept. 2018). The Court held that the parties’ competing affidavits, the Collateral Assignment of Contracts (one of the loan documents drafted by defendants), and emails between the parties raised triable issues of fact as to the scope of defendants’ representation of plaintiffs. Specifically, the Court found issues of fact as to whether defendants’ role was limited, at plaintiffs’ express instruction, to exclude a duty to perfect plaintiffs’ security interests in the subject insurance policies, and if so limited, whether defendants ensured that plaintiffs, their
clients, understood that defendants were not responsible for perfecting the subject security interests. The Court further noted that discovery was not completed at the time of the first motion, that defendants had outstanding discovery requests “relating to issues of proximate cause”, and that by granting summary judgment while discovery was ongoing, this court had “foreclos[ed defendants’] attempt to obtain material and necessary discovery to [their] defenses.” As to defendants’ counterclaims, the Court held that their dismissal was improper given the reversal and denial of summary judgment on the issue of liability for legal malpractice. “

“Even were the present motion not barred by the principle of law of the case, it is barred by the prohibition against successive summary judgment motions. It is well-settled that “[s]uccessive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification.” Jones v 636 Holding Corp., 73 AD3d 409, 409 (1st Dept. 2010); see Landis v 383 Realty Corp., 175 AD3d 1207, 1207 (1st Dept. 2019). To justify a successive summary judgment motion, purportedly “new” evidence must have been “unavailable to [the movant] before the prior motion[.]” Lorne v 50 Madison Ave LLC, 198 AD3d 483, 483 (1st Dept. 2021); see Landis v 383 Realty Corp., supra; Maggio v 24 West 57 APF, LLC, 134 AD3d 621, 625-26 (1st Dept. 2015). An intervening appellate decision in the same case may also constitute “sufficient justification” for a successive summary judgment motion if the decision clarifies or changes the controlling law. See Amill v Lawrence Ruben Co., 117 AD3d 433, 433–34 (1st Dept. 2014). It has also been held that a court may entertain a successive summary judgment motion that is ‘“substantively valid”’ and ‘“will further the ends of
justice and eliminate an unnecessary burden on the resources of the courts.”’ Wells Fargo Bank, N.A., v Osias, 205 AD3d 979, 982 (2nd Dept. 2022), quoting Aurora Loan Servs., LLC v Yogev, 194 AD3d 996, 997 (2nd Dept. 2021). That is, entertaining the motion would ‘“enhance[] judicial efficiency.”’ MTGLQ Investors, LP v Collado, 183 AD3d 414, 414 (1st Dept. 2020), quoting Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418, 419 (1st Dept. 2012). However, this is a “narrow exception to the successive summary judgment rule.” Wells Fargo Bank, N.A, v Osias, supra at 981 (internal quotation marks omitted). ‘“Successive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance.”’ Id. at 982, quoting Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020 (2nd Dept. 2020).”

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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.