Payne v Rosenberg, Minc, Falkoff & Wolfe, LLP 2024 NY Slip Op 03341 Decided on June 18, 2024 Appellate Division, First Department demonstrates that in almost every setting where a client makes claims against an attorney the legal malpractice claim is primary, and potentially a breach of contract or a breach of fiduciary duty claim can stand, but consumer oriented misrepresentations rarely succeed.

“The legal malpractice claim should not have been dismissed insofar as it alleged malpractice based on defendant law firm’s failure to take steps to enforce and collect the judgment it had obtained on behalf of plaintiff in the underlying personal injury action. The terms of the contingency fee retainer agreement did not unambiguously provide that the representation in that action terminated upon entry of the judgment or otherwise make clear that the scope of the representation did not include enforcement and collection tasks (see e.g. TMB Communications v Preefer, 61 AD3d 450 [1st Dept 2009]).

The court correctly denied dismissal of the legal malpractice claim insofar as it alleged malpractice based on defendant law firm’s failure to name as a defendant in the underlying personal injury action a former deed owner who had an outstanding mortgage on the property which had not been satisfied. The elements of the malpractice claim were adequately pleaded at this stage of the proceedings (see Jarmuth v Wagner, 219 AD3d 1248 [1st Dept 2023]). The court declined to find that the claim was untimely asserted, correctly accepting as true the facts alleged by plaintiff concerning defendant’s continuous representation until such time as defendant advised her to retain collections counsel (see Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475, 475-476 [1st Dept 2018]).

Given that the retainer agreement did not unambiguously terminate the representation upon the entry of the underlying judgment, there is no basis at this juncture for dismissing any portion of the legal malpractice claim as time barred. The claim, including to the extent it is based on allegations that defendant acted in a dilatory manner in seeking a default in the underlying action, is otherwise well-pleaded. Thus, the malpractice claim, including those portions the court implicitly dismissed without explanation, should be reinstated in its entirety.

The court correctly dismissed the General Business Law § 349 claim. Plaintiff fails to show that defendant made statements on its website or in a standard form retainer agreement that promised the public that the scope of its representation in personal injury matters encompassed enforcement and collection proceedings[*2]. Defendant’s failure to provide language in such public-facing documents enumerating in detail the aspects of the scope of its representation and making clear that enforcement and collection tasks were not included does not rise to the level of a consumer-oriented misrepresentation or deceptive practice under General Business Law § 349 (see Kickertz v New York Univ., 110 AD3d 268, 273 [1st Dept 2013]; see also Loeb v Architecture Work, P.C., 154 AD3d 616, 616-617 [1st Dept 2017]; Plaza PH2001 LLC v Plaza Residential Owner LP, 98 AD3d 89, 104 [1st Dept 2012]).”

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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.