Courts are institutionally wary of JL 487 cases. This wariness is demonstrated in Radiation Oncology Servs. of Cent. N.Y., P.C. v Warren 2024 NY Slip Op 00484
Decided on February 1, 2024 Appellate Division, Third Department.

“As more fully set forth in two prior decisions of this Court (Radiation Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 221 AD3d 1324 [3d Dept 2023]; Radiation Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 148 AD3d 1418 [3d Dept 2017]), plaintiff Radiation Oncology Services of Central New York, P.C. (hereinafter ROSCNY) entered into a written coverage agreement with Our Lady of Lourdes Memorial Hospital, Inc. (hereinafter Lourdes) pursuant to which ROSCNY was granted the exclusive right to provide oncology services at the hospital, with plaintiff Michael J. Fallon serving as medical director. After plaintiffs’ services were terminated, they commenced an action against Lourdes and certain other affiliated individuals for, among other things, breach of contract, libel and slander (hereinafter the Cortland County action). Following a lengthy period of discovery, plaintiffs moved for spoliation sanctions against Lourdes due to its failure to preserve and produce several documents during the discovery process. Plaintiffs also sought monetary sanctions against the attorneys of record for Lourdes based upon allegations that one of its attorneys, defendant Jeanette N. Warren, made intentionally false and misleading statements to Supreme Court and plaintiffs during the course of the years-long discovery litigation. Amongst the various falsehoods allegedly uttered, plaintiffs asserted that Warren repeatedly assured the court that a litigation hold had been implemented for the Cortland County action when, in fact, one had not been in place. In a series of orders, Supreme Court (Masler, J.) granted plaintiffs $10,000 in spoliation sanctions upon a finding that Lourdes failed to preserve certain documents, but declined to impose sanctions upon Lourdes’ attorneys.

Undeterred, plaintiffs commenced this action against Warren, defendant James Gleason and the law firm for whom they worked alleging causes of action pursuant to Judiciary Law § 487 related to the allegedly false and deceitful statements proffered by Warren, and purportedly consented to by Gleason, in the context of the Cortland County action. Defendants thereafter moved to dismiss the complaint for failure to state a cause of action and as barred by the doctrine of collateral estoppel. On the latter point, defendants argued that plaintiffs were collaterally estopped from relitigating the alleged Judiciary Law § 487 violations because they were all addressed and resolved in the context of plaintiffs’ motion for sanctions in the Cortland County action. Supreme Court (McBride, J.) denied the motion, and this appeal ensued.

We agree with defendants that, to the extent plaintiffs’ Judiciary Law § 487 claims are premised upon the statements made by Warren concerning the existence of a [*2]litigation hold in the Cortland County action, they are barred by principles of collateral estoppel. Collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party. . . , whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; see Matter of Dunn, 24 NY3d 699, 704 [2015]). The doctrine applies “where the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the party who is being estopped had a full and fair opportunity to litigate the issue in the earlier action” (Simmons v Trans Express Inc., 37 NY3d 107, 112 [2021] [internal quotation marks and citation omitted]; see Matter of Molnar v JRL S. Hampton, LLC, 212 AD3d 974, 975 [3d Dept 2023], lv denied 39 NY3d 911 [2023]). To establish a claim under Judiciary Law § 487 (1), it must be shown that the defendant attorney engaged in “deceit or collusion, or consent[ed] to any deceit or collusion, with intent to deceive the court or any party.”

The record reflects that the issue of whether Warren attempted to intentionally deceive plaintiffs or the court in the Cortland County action by falsely representing that Lourdes had implemented a litigation hold was fully litigated in the Cortland County action and resolved by Supreme Court (Masler, J.) in its order declining to impose sanctions upon defendants. In that order, the court expressly rejected plaintiffs’ claims that defendants had “intentionally deceived and misled” the court and plaintiffs by inaccurately stating that a litigation hold was in place. In so concluding, Supreme Court specifically found that defendants did not engage in a “deliberate pattern of obstructing disclosure” and that their representations with regard to the litigation hold “[were] not without [a] factual basis” and did not “affirmatively mislead” the court or any party. Plaintiffs plainly had a full and fair opportunity to litigate this issue in the Cortland County action, a point underscored by the fact that they moved to renew their request for sanctions against defendants after they failed to succeed in obtaining such relief in the first instance. Because the issue of whether defendants engaged in intentional deceit in connection with the representations made concerning the existence of a litigation hold was already raised and decided in the Cortland County action, plaintiffs are precluded from relitigating that same issue in this matter (see Mortgage Elec. Registration Sys., Inc. v McVicar, 203 AD3d 919, 920 [2d Dept 2022]; Platt v Berkowitz, 203 AD3d 447, 448 [1st Dept 2022]; Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 523-524 [1st Dept 2017]; Neroni v Follender, 137 AD3d 1336, 1337 [3d Dept 2016]).”

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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.