Serafini Releasing LLC v Gray 2024 NY Slip Op 30863(U) March 13, 2024
Supreme Court, New York County Docket Number: Index No. 655579/2021
Judge: Melissa A. Crane is that rare New York legal malpractice case arising out of the making of a film. Here, Plaintiff has several scenarios at play against the attorney and, in the last reel, loses all.

“In this action, plaintiff Serafini Releasing, LLC (“plaintiff” or “Serafini”), a New Yark
based film production and distribution company, originally alleged that defendant Jonathan Gray (“Gray”), an attorney, and his law firm, defendant Gray Krauss Stratford Sandler Des Rochers, LLP (“Gray Krauss”), wrongfully stole its ownership interest in a film project entitled “16 Bars” (the “Film”) and gave it to another party, Gary Gumowitz (“Gumowitz”). Susanne Bohnet (“Bohnet”) is the chief operating officer and sole member of plaintiff. Plaintiff claimed that Gray was its attorney, that it relied on and trusted him, and was shocked to learn it “lost” its rights to the Film.

Plaintiffs theory of the case has been a moving target. During motion practice, plaintiff
abandoned its ownership claim. Plaintiff now claims that Gray began prioritizing the interests of Gumowitz, the Film’s investor and owner. Plaintiff claims Gray stripped plaintiff of the managerial rights that would have allowed it creative and managerial control over the completion and release of the Film. Plaintiff claims it had the right to complete the Film regardless of budget, and that Gumowitz and his company, 16 Bars Feature Film LLC, would be obligated to continue to finance the Film without limit or discretion until its completion.”

“In its first cause of action for breach of fiduciary duty, plaintiff alleges that “[i ]n their role as attorneys retained by Plaintiff, Defendants assumed the role of fiduciary to Plaintiff and owed fiduciary duties to Plaintiff’ (amended complaint,, 88). Plaintiff further alleges that defendants breached those duties by “drafting and directing Plaintiff to execute legal documents that stripped Plaintiff of the rights and authority over its own Film” (id.,, 94).

In its second cause of action for “negligent advice causing damage,” which sounds in
legal malpractice, plaintiff alleges that, “[b ]eginning in November 2018, Plaintiff consulted with Defendants Gray and Gray Krauss for the express purpose of engaging Defendant Gray to act as production counsel for the Film and protect Plaintiffs interests in connection with it.” Plaintiff further alleges these services included “Gray providing Plaintiff direction and advice on numerous legal questions and matters related to the production of the Film and Plaintiffs control over it” (id., ,r 102). Plaintiff further alleges that “[ d]uring that time, however, Defendants exercised intentional and repeated lack of due care in advising Plaintiff,” that included “advising Plaintiff to accept and/or sign documents that stripped it of its creative and business control over the Film” (id., ,r 1 04).
A cause of action to recover damages for negligence sounding in legal malpractice has
three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages plaintiff sustained, and (3) that, but for the defendant’s negligence, the plaintiff would have been successful in the underlying action (Leder v Spiegel, 9 NY3d 836, 837 [2007]; accord Century Prop. & Cas. Inc. Corp. v McManus & Richter, _ AD3d _, 2024 NY Slip Op 00799, * 5 [1 st Dept 2024]). To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging malpractice (Schoenberg v Dankberg, 2020 NY Slip Op 33133[U] [Sup Ct, NY County 2020]).

To establish causation, a plaintiff must demonstrate that, but for the attorney’s
negligence, she would have prevailed in the underlying matter, or would not have sustained any ascertainable damages ( Brooks v Lewin, 21 AD3d 731, 734 [ pt Dept 2005]). The failure to establish proximate cause mandates the dismissal of a legal malpractice action, regardless of the attorney’s negligence (id.; see e.g. Jarmuth v Wagner, 219 AD3d 1248, 1249 [l5t Dept 2023] [ dismissing malpractice claim “because plaintiff did not, and cannot, adequately plead that this advice and conduct was the proximate cause of damage suffered by the co-op,” as “(t)he complaint contains no nonconclusory allegations suggesting that the purported negligence by defendants was the ‘but for’ cause of the co-op sustaining actual damages”]). A plaintiffs speculation about loss resulting from an attorney’s alleged omission is insufficient to sustain a case of legal malpractice (Dempster v Liotti, 86 AD3d 169, 177 [2nd Dept 2011]; see e.g. Weis v Rheem, Bell & Freeman, LLP, 217 AD3d 538, 539 [1 st Dept 2023] [“Defendants were entitled to dismissal of the complaint given that plaintiffs failed to allege actual and ascertainable damages that were proximately caused by defendants’ alleged malpractice” as “the allegations of proximate causation depend on multiple speculative allegations”]).”

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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.