Herz v London Indusi LLP 2023 NY Slip Op 33683(U) September 15, 2023
Supreme Court, Kings County Docket Number: Index No. 510794/21 Judge: Ingrid Joseph is a complicated and interesting case of accidental/medical malpractice death in a nursing home where a claim was made against the nursing home and for an accidental death insurance policy as well. Eventually, one cancelled out the other, and the attorneys who represented the estate in both cases were sued. While there was a settlement of the insurance policy claim, the med mal case was lost. Were the various attorneys negligent in how they handled the multiple cases?

The facts are too long to reproduce here. The Court eventually dismisses on “scope of the retainer” grounds as well as finding that the loss of a medical malpractice claim was too speculative.

“To state a cause of action alleging legal malpractice, a plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (Rudolf v Shayne, Dachs, Stanisci, Corker, & Sauer, 8 N.Y.3d 438 [2007]; Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum, & Vitulli, 215 A.D.3d 699 [2d Dept. 2023]; Park/ex Associates v Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d 698 [2d Dept.2014 ]). A cause of action for legal malpractice cannot be stated in the absence of an attorney-client relationship ( Windsor Metal Fabrications, Ltd. v Scott & Schechtman, 286 A.D.2d 732 [2d Dept. 2001]). Generally, to plead causation, the plaintiff must allege that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney’s negligence (Rudolf at 442; PhilipS Schwartzman,
Inc. at 703; Park/ex Associates at 970). Furthermore, the claimed “actual and ascertainable damages” have to be clearly calculable (see Rudolph; Gallet. Dreyer & Berkey, LLP v Basile, 141 A.D.3d 405 [1st Dept.2016]). Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action (Philip S. Schwartzman, Inc. at 704; Katsoris v Bodnar & Milone, LLP, 186 A.D.3d
1504 [2d Dept. 2020}; Gall v Colon;.Sylvain, 151 A.D.3d 698 [2d Dept. 2017]).

In, Grace v. Law, 24 N.Y.3d 203 (2014]. the Court of Appeals held that prior to commencing a legal malpractice action, a party \vho.is likely to succeed on appeal of the underlying action is required to press their appeal beforehand. If the client is not likely to succeed, then they may bring a legal malpractice action without first pursuing an appeal (Id.). Consequently, a defendant in a legal malpractice action can assert that a plaintiff is now barred from bringing the action by establishing that the client failed to pursue an appeal in the underlying action, that would likely have been successful (Id.; see also Buczek v Dell & Little, LLP, 127 A.D.3d 1121 [2d Dept. 2015]).

Here, Plaintiffs have failed to plead a viable cause of action for legal malpractice. With respect to RusoKarl, Plaintiffs’ conclusory statements that the RussoKarl firm is a successor in interest to the Indusi firm is insufficient to establish an attorney-client relationship and state a claim for legal malpractice. Plaintiffs have failed to allege specific facts upon which the existence of an attorney-client relationship or
privity exists between themselves and the RussoKarl firm or establish that they would have prevailed in the underlying action but for RussoKarl’ s negligence.

Additionally, Plaii1tiffs have failed to plead actual and as.certainable damages. While Plaintiffs attach an expert affirmation and deposition testimony to support their claims that the acts of the individuals involved in the Medical Malpractice actions were negligent, Plaintiffs only state in a conclusory fashion that the Medical Malpractice action-would have resulted in monetary recovery but for Sine!, lndusi, or RusoKarl and Gerace’s negligence. Such allegations are insufficient to establish actual and ascertainable damages necessary to plead a cause of action for legal malpractice.”

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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.