Scott v Leventhal 2024 NY Slip Op 31543(U) April 30, 2024 Supreme Court, New York County Docket Number: Index No. 656211/2017 Judge: Debra A. James reveals a couple of sad truths about legal malpractice litigation. First, there are many twists and turns in the analysis of claims, especially claims that were never filed by the defendant attorney, and how the legal malpractice bar takes on cases and then tries to exit.

“This court previously dismissed plaintiff’s causes of action for breach of contract and breach of fiduciary duty, holding that such causes of action were duplicative of
plaintiff’s legal malpractice cause of action. See NYSCEF Document Number 286. Such holdings are law of the case. See Glynwill Investments, NV v Shearson Lehman Hutton, Inc, 216 AD2d 78, 79 (1 st Dept 1995)

Plaintiff’s recasting the Third Amended Complaint to remove the legal malpractice cause of action and substitute and reassert another breach of contract claim (first cause of action) does not overcome such prior holding with respect to the breach of contract claim, as plaintiff has still not come forward with prima facie proof of any breach of contract by defendants, given, as found earlier, the provision of the retainer agreement dated September 8, 2015, that defendants could withdraw as counsel at any time before any lawsuit was commenced, and, in fact defendants never commenced a lawsuit on behalf of plaintiff’s decedent. Nor does plaintiff’s assertion about defendants’ alleged breach of the implied covenant of good faith and fair dealing rescue her breach of contract cause of action.

With respect to the claim of breach of fiduciary duty (second cause of action), such cause of action sounds in legal malpractice, and such legal practice claim was not previously dismissed by this court. In that regard, legal precedent holds

“In the attorney liability context, the breach of
fiduciary duty claim is governed by the same standard
as a legal malpractice claim. Accordingly, to recover
damages against an attorney arising out of the breach
of the attorney’s fiduciary duty, plaintiff must
establish the ‘but for’ element of malpractice.”
Knox v Aronson, Mayefsky & Sloan, LLP, 168 AD3d 70, 75-76 (1 st
Dept 2018) (citations omitted).

Plaintiff comes forward with prima facie evidence that “but for” the failure of defendants to commence a lawsuit within the statute of limitations for battery
(one year after the alleged August 15, 2016 battery) or to inform her of such deadline so that she might retain new counsel to commence a timely action, she would have recovered damages for battery in a lawsuit asserting that City Correction Department employees intentionally assaulted and battered her decedent son, causing injury to his testicles. Specifically, plaintiff submits the records of Bellevue Hospital Center that
states that plaintiff’s decedent son was admitted to the hospital on August 16, 2015, with complaints that [prior to admission/11 AM, the day before] defendants’ correction officers “kicked [him] in the balls 3 times”, [and that] “patient noticed significant swelling (‘swollen like a watermelon’)” and that examination in hospital revealed “trauma to scrotum, now swelling and tenderness”. As such evidence raises issues of
fact with respect to plaintiff’s claim of breach of fiduciary duty/legal malpractice, neither summary judgment dismissing such cause of action against defendants nor partial summary judgment of liability in favor of plaintiff is warranted. See Johnson v Suffolk County Police Department, 245 AD2d 340, 341 (2d Dept 1997) .”

“On May 1, 2023, plaintiff’s attorney Richard Pu, Esq., filed a “Notice of Change/Discharge of Attorney and Notice of Appearance”, asserting that plaintiff would proceed prose. (NYSCEF Document Number 426). This court notes that such Notice
is a nullity as plaintiff herself never consented thereto. Such notice is without force and effect as plaintiff, counsel’s client, did not sign such form or acknowledge her signature
before a notary public, as required pursuant to CPLR §321(b) See Garafola v Mayoka, 151 AD3d 1018 (2d Dept 2017). Instead Such such the form appears to have been filled out by counsel.”

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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.