Jarmuth v Wagner 2023 NY Slip Op 04820 Decided on September 28, 2023 Appellate Division, First Department is the story of a co-op shareholder bringing what was in essence a derivative action against the co-op’s attorneys concerning co-op litigation. The shareholder did not succeed in pleading legal malpractice.

“To properly plead a cause of action for legal malpractice, a plaintiff must allege negligence on the part of the attorney, that the attorney’s conduct was the proximate cause of the injury to plaintiff, and that plaintiff suffered actual and ascertainable damages (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]).

Here, the complaint’s allegations are too vague and lacking in specificity with respect to the purportedly negligent legal advice given to the co-op concerning the settlement of an underlying action and the status of its contractual right to recover legal fees incurred in that action to permit any assessment of whether the advice was incorrect, let alone negligent. This failure by plaintiff to adequately allege negligence on the part of defendant attorneys requires dismissal of this legal malpractice action (see Lloyd’s Syndicate 2987 v Furman Kornfeld & Brennan, LLP, 182 AD3d 487, 488 [1st Dept 2020]). In any event, plaintiff cannot point to settled law that refutes and renders negligent the alleged legal opinion in connection with this particular fee provision, which has facial ambiguities as to its scope and applicability.

Moreover, even if the advice and conduct detailed by plaintiff in her appellate brief had adequately been alleged and sufficient to satisfy the pleading element of attorney negligence, dismissal of the malpractice claim would still be required because plaintiff did not, and cannot, adequately plead that this advice and conduct was the proximate cause of damage suffered by the co-op. The complaint contains no nonconclusory allegations suggesting that the purported negligence by defendants was the “but for” cause of the co-op sustaining actual damages (see Drasche v Edelman & Edelman, 201 AD3d 434, 435 [1st Dept 2022], lv denied 38 NY3d 906 [2022]; Silverstein v Pillersdorf, 199 AD3d 539, 540 [1st Dept 2021]). Had the complaint included the allegations raised by plaintiff on appeal, they still would nothave pleaded proximate cause sufficient to support the legal malpractice claim (see e.g. Ozimek v DiJoseph, 204 AD3d 448 [1st Dept 2022], lv denied 38 NY3d 911 [2022]; Menkes v Solomon & Cramer LLP, 203 AD3d 514 [1st Dept 2022]).”

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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.