Mensch v Calogero 2023 NY Slip Op 33648(U) October 17, 2023
Supreme Court, New York County Docket Number: Index No. 155795/2022
Judge: Dakota D. Ramseur demonstrates the extreme danger matrimonial litigants are subjected to in a settlement allocution when they are asked the simple question by the judge: “Are you satisfied with the work of your attorney?”

When they (as they are always coached to do) say “Yes”, they have given up almost all rights to sue their attorney, even when it is later discovered, for example, that the attorney missed a multi-million dollar tax refund which should have been awarded to the litigant. Would a surgery patient be stripped of the right to sue if they were asked after waking up, “Are you satisfied with your surgeon?”

“In 2017, plaintiff retained Calogero, Clair, and their law firm, Cohen, Clair, Lans,
Griefer, Thorpe, and Rottenstreich LLP, to represent her in a divorce proceeding against her exhusband in an action brought in New York Supreme Court, New York County. (Peter Mensch v Louise Mensch, NYSCEF index no. 309381/2017.) Thereafter, plaintiff and her former husband reached a settlement agreement in July 2019, which this Court entered pursuant to a so-ordered stipulation. After settling, plaintiff alleges that she discovered certain state and federal income tax overpayments, totaling approximately $1.1 million, made from accounts that were part of the marital estate. She then commenced the instant action against defendants, alleging (1) they committed legal malpractice by failing to discover the tax refunds to which she was entitled in the divorce proceeding, and (2) defendants breached the terms of the retainer agreement that required them “to provide adequate advisory services to assist her in the negotiation of the division of her marital estate.” (NYSCEF doc. no. 1 at ,i 34-38, complaint; NYSCEF doc. no. 16 at 1, retainer agreement [ specifying that defendants “will explain to you the laws pertinent to your situation, available options and the attendant risks.”])”

“In Sabo, the First Department granted the defendant-law firm’s motion to dismiss the
plaintiff’s legal malpractice cause of action, finding he had not sufficiently pled a breach of the duty to exercise the ordinary, reasonable skill commonly possessed by members of the legal profession or that his injuries were proximately caused by defendant’s legal representation. (Sabo, 25 AD3d at 421.) At the same time, the court denied the plaintiff leave to amend the complaint since his proposed fraud claim would be duplicative of the already dismissed legal malpractice claim. (Id.) Similarly, in Kassover, the First Department dismissed both the defendant’s counterclaim for legal malpractice (for failing to demonstrate plaintiff’s conduct fell below the standard of the profession) and the counterclaim for breach of contract (for being duplicative of the dismissed malpractice claim). (Kassover, 80 AD3d at 501.) And in Schiller v Bender, Burrows & Rosenthal, LLP, which defendants raised in their previous memorandum of law, the Second Department affirmed the dismissal of the plaintiff’s legal malpractice claim
since, like here, the statements he made in his divorce settlement agreement refuted his malpractice claim. (Schiller, 116 AD3d at 758.) In the same breath, the Second Department also affirmed the trial court’s dismissal of the plaintiff’s breach of contract claim since they were predicated on “the same allegations which were insufficient to state a cause of action to recover for legal malpractice.” (Id.) These cases demonstrate that breach of contract claims based on the same facts as malpractice claims are duplicative irrespective of whether the legal malpractice claim has been dismissed. As such, the Court erred in requiring defendants to demonstrate an “independent basis” for dismissing plaintiff’s breach of contract claim.

Since plaintiff admitted, both on the original motion sequence and in reargument, that
much of the facts giving rise to her breach of contract claim are substantially the same as those of her malpractice claim, the Court finds the breach of contract claim to be duplicative. In opposition, plaintiff argues that she has sufficiently pled a breach of contract claim, but this argument does not refute whether the breach of contract is duplicative of malpractice. Lastly, plaintiff’s reliance on Santulli v Englert, Reilly & McHugh, 78 NY2d 700, 705 [1992] is misplaced: the Court of Appeals merely noted that whether a cause of action is framed in contractual or malpractice terms, the appropriate statute of limitations is determined based on the remedy the plaintiff seeks. (Id. at 707.) As such, there was no duplication problem.”

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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.