Kidron v Suris & Assoc., P.C. 2024 NY Slip Op 02503 Decided on May 07, 2024
Appellate Division, First Department reminds us that there are vast differences between the law in the First Department and the law in the Second Department, both of which are in the State of New York. Why this could be is a marvelous mystery. In the First Department it is Defendants’ burden to demonstrate uncollectability of a judgment as a defense; in the Second Department it is Plaintiff’s burden.

“Judgment, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 30, 2023, dismissing plaintiff’s legal malpractice action in its entirety, unanimously reversed, on the law, with costs, the judgment vacated, the complaint reinstated, plaintiff’s cross-motion for leave to amend granted, and the matter remanded for further proceedings. Appeal from order, same court and Justice, entered March 28, 2023, which granted the motion of defendant, Suris & Associates, P.C. for summary judgment and implicitly denied plaintiff’s cross-motion for leave to amend, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

“To recover damages for legal malpractice, the plaintiff must establish that the attorney (1) failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community and (2) that such negligence was a proximate cause of the loss in question” (Ackerman v Nathan L. Dembin & Assoc., P.C., 194 AD3d 512, 513 [1st Dept 2021] [internal quotation marks omitted]). Defendant sought summary judgment exclusively on causation grounds—namely that plaintiff could not show that, “but for the attorney’s negligence, the plaintiff would have succeeded on the merits of the underlying action” (Kivo v Louis F. Burke, P.C., 187 AD3d 503, 503 [1st Dept 2020] [internal quotation marks omitted]).

Issues of fact as to causation preclude summary judgment on plaintiff’s malpractice claim arising from defendant’s failure to pursue litigation against plaintiff’s insurance carriers within the policies’ two-year limitations periods. Plaintiff’s policies with Granite State Insurance Company and Great Northern Insurance Company covered property damage but excluded loss caused by faulty workmanship. Plaintiff does not dispute that much of the damage to his home resulted from negligent workmanship by his contractors, Sun Dragon Industries and Sandro Darsin. However, plaintiff submitted evidence that his contractors’ work caused leaks in the plumbing, which in turn caused extensive water damage. This evidence created an issue of fact whether the water damage would be covered under the policies’ “ensuing loss” exceptions to the poor workmanship exclusions, as “collateral or subsequent damage” unrelated to the excluded peril (Narob Dev. Corp. v Insurance Co. of N. Am., 219 AD2d 454, 454 [1st Dept 1995], lv denied 87 NY2d 804 [1995]; see Ewald v Erie Ins. Co. of N.Y., 214 AD3d 1382, 1385 [4th Dept 2023]). Although there is evidence suggesting the Great Northern policy’s dwelling coverage was not in effect at the time of the damage, the fact that Great Northern disclaimed coverage by invoking the policy’s poor workmanship exclusion, rather than the non-existence of dwelling coverage on the premises, creates a dispute of fact on that issue.

Issues of fact as to causation likewise preclude summary judgment on plaintiff’s claim arising from defendant’s failure to complete proper service on Darsin [*2]in the underlying tort and contract litigation. Darsin was dismissed from the underlying action for improper service, but plaintiff succeeded in securing a judgment against Sun Dragon on default. The unexecuted construction contract in the record lists “Sandro Darsin c/o Sun Dragon Industries” as a party, and Sun Dragon’s insurance carrier identified Darsin as the business’s “principal and owner.” Plaintiff’s testimony that Darsin “had no [financial] means whatsoever” is insufficient to defeat causation, as “the ultimate collectability of any judgment that could have been obtained in the underlying action is not an element necessary to establish” a legal malpractice claim (Lindenman v Kreitzer, 7 AD3d 30, 31 [1st Dept 2004]).”

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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.