Allen v Thompson 2024 NY Slip Op 00929 Decided on February 22, 2024 Appellate Division, First Department, in what may be a pyrrhic victory (Defendant attorney is pro-se), is an unusual set of facts.

In this case, plaintiff alleges that on or about February 28, 2012, she was terminated from Chanel after nineteen years of employment. She was not satisfied with the severance package offered and believed that her employment was terminated on the basis of discrimination. Plaintiff thus consulted with defendant to negotiate a more favorable separation and release agreement (the Agreement) from Chanel that would still permit her to retain her legal right to move forward on her discrimination claims.

After a few weeks of negotiation, defendant received the final draft of the Agreement from Chanel which contained language that included a release from any discrimination claims. Unbeknownst to plaintiff at the time, defendant unilaterally and without plaintiff’s consent, changed one word in the Agreement so that plaintiff would be released from all of her rights as part of the settlement, except for any right arising under Title VII, the New York State Human Rights Law and the New York City Human Rights Law, thereby allowing plaintiff to still file a lawsuit under these statutes. Plaintiff was instructed by defendant to initial each page of the release and sign it, which she did.

On or about April 15, 2012, plaintiff received her first severance check. Subsequently, on or about September 6, 2012, defendant filed a discrimination lawsuit on plaintiff’s behalf in the United States District Court for the Southern District of New York (Allen v Chanel, Inc., et al., 12-cv-6758 (LAP). Chanel’s motion to dismiss was denied on the grounds that plaintiff had not knowingly or voluntarily waived any of her rights to file a discrimination lawsuit against Chanel.

On or about December 3, 2012, defendant emailed to plaintiff an affidavit that he had prepared and instructed plaintiff to sign, that stated that plaintiff herself, not defendant was responsible for modifying the Agreement.

On or about June 18, 2013, Chanel filed a counterclaim in the Federal action alleging that plaintiff knowingly and fraudulently misrepresented the severance agreement to Chanel and demanded that they be reimbursed the amount already paid in severance to plaintiff as well as for the costs of defending the discrimination lawsuit. Chanel then filed a motion for summary judgment on its counterclaim as well as on the discrimination claims, which was granted on or about November 13, 2014, and Chanel was awarded damages.

Plaintiff further alleges that she expressed to defendant the importance of having the discrimination suit sealed upon completion, as it would harm her job and career opportunities. She was continuously assured by defendant that he would make sure it was sealed [*2]and there was nothing to worry about. However, this was never done.”

On the merits, the complaint sufficiently states a claim for legal malpractice. Defendant fails to offer a reasonable explanation as to how changing a word in the release entered into between his client and her former employer, which substantially changed the meaning of the contractual provisionsor suborning his client’s perjury in the related Federal discrimination action, constitute reasonable strategic choices (cf. Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 122 AD3d 686, 687 [2d Dept 2014]). Plaintiff also sufficiently pleaded causation by asserting that defendant’s failure to seal the file in the federal action damaged her job-hunting efforts for new employment. While plaintiff did not identify specific lost employment opportunities on this basis, she did allege specifically that she was told this was the case by recruiters. At the pleading stage, this is sufficient (see Gotay v Breitbart, 14 AD3d 452, 454 [1st Dept 2005]).

Moreover, the claims were not barred by the statute of limitations, which was tolled by both executive order (9 NYCRR 8.202.8), as extended, and the continuous representation doctrine (Murphy v Harris, 210 AD3d 410, 411 [1st Dept 2022]).

Defendant’s contention that plaintiff’s prior affidavit in the Federal action constituted documentary evidence sufficient to dispositively refute her claims was properly rejected. The affidavit does not constitute documentary evidence under CPLR 3211(a)(1) (Mamoon v Dot Net Inc., 135 AD3d 656, 657 [1st Dept 2016]), nor does the affidavit utterly refute the claims.”

Email this postTweet this postLike this postShare this post on LinkedIn
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.