Gordon v Martel 2023 NY Slip Op 33666(U) October 17, 2023 Supreme Court, New York County Docket Number: Index No. 150241-2023 Judge: Lynn R. Kotler demonstrates that real estate in New York City is a driving force for attorney employment, litigation cases and, eventually, legal malpractice. In this particular case, the attorney died and extraneous issues of proofs and statutes of limitation are examined.

“This is an action for legal malpractice and negligence which arises from non-party Ronald Hollander’s (“Hollander”) representation of plaintiff Martina Gordon (“Gordon”). The representation concerned a property located at 476 Broadway a/k/a 38 Crosby Street, New York, New York, Apartment 1 OR (the “unit”). Hollander represented Gordon in an action against the Cooperative of the building that the unit was a part of. Hollander passed away in July 2022, and so Gordon brings this action against Maureen Martel (“Martel”) as the administrator of Hollander’s estate. Gordon claims she has been barred from recovering damages in her case against the Cooperative due to the negligence or recklessness of Hollander and his failure to prosecute the litigation in “a proper skillful and diligent manner.” In this action, Gordon is seeking damages in an amount to be determined at trial plus costs, disbursements, and statutory prejudgment interest. Defendant now moves for an order dismissing the action in its entirety with prejudice pursuant to CPLR § 3211(a)(1), (5), and (7) and CPLR § 4519. Plaintiff opposes the motion.”

“First, Martel argues that the complaint is untimely and violates the applicable statute of limitations. Martel states that the statute of limitations allows a claim to be brought within three years after the ripening of the claim, not three years after the representation ended. Martel argues that the alleged misrepresentation around the mischaracterization of her negligence claim and the failure to appeal ripened
in July of 2018, when Judge James’ decision and order was issued. She claims that the alleged misrepresentation around the dismissal of the claims against Vidaris ripened in 2017 when the dismissal took place. Therefore, the statute of limitations has run on both of these alleged misrepresentations.

Martel further argues that even if the continuous representation doctrine is applicable, this action was untimely. She points to a January 2, 2020 correspondence between Hollander and Gordon’s husband which she claims evidences a clear breakdown of the attorney-client relationship. Martel asserts that this. correspondence demonstrates that the attorney/client relationship terminated on that day, thereby cutting off the continuous representation doctrine. Therefore, plaintiff had until January 2, 2023
to bring this action. The action was brought on January 9, 2023.

Gordon responds that her claim is timely because the continuous representation doctrine as well as the toll afforded under CPLR § 210(b) are applicable to this case. Therefore, Gordon had ample to file a malpractice claim. Gordon submits the WebCivil appearance detail of the underlying action to support her argument.

An action for legal malpractice must be commenced within three years of the date of accrual (CPLR 214[6]), The claim accrues when the malpractice is committed, not when the client discovers it (Williamson ex rel. Lipper Convertibles, L.P. v. PricewaterhouseCoopers LLP, 9 NY3d 1 [20071).”

“As for plaintiff’s claim arising from the failure to appeal the 2018 Order, the court finds that the continuous representation doctrine does save this claim as it is related to the ongoing issues in which Hollander continued to represent the Gordons on until January 2020. Further, while this action was commenced several days beyond three years from when Hollander no longer represented the Gordons, Hollanders passing in 2022 further tolled the statute of limitations eighteen months automatically (CPLR 21 0[b]; see i.e. McDonough v. Cestare, 3 AD2d 201 [2d Dept 1957]). Therefore, the motion to dismiss
plaintiff’s malpractice claim stemming from the 2018 Order as untimely is denied.”

“Finally, Martel argues that the dead man’s statute prevents plaintiff from testifying as to any advice given by Hollander and that the inability to provide such testimony renders any claim unprovable. She states that plaintiff and her husband would necessarily be required to testify as to communications between Hollander and themselves with respect to the legal advice that they had been given in the underlying action to establish a case for malpractice. The CPLR § 4519 does not bar Gordon from bringing this action. Indeed, Gordon states that she will establish her claim through documentary evidence and expert witnesses testimony. Accordingly, this argument is also unavailing.”

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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.