Braig v Baker 2024 NY Slip Op 51438(U) Decided on October 22, 2024 Supreme Court, Westchester County Giacomo, J. is an interesting case in which a $ 1M + settlement was obtained, but two sets of attorneys shied away from continuing the case against an employer of the driver. Attorney 2 seeks to blame Attorney 1 for shortcomings in discovery. The question of whether Attorney 2 could have fixed the mistakes of attorney 1 did not arise.

“Plaintiffs allege Baker committed legal malpractice in the representation of plaintiffs in the underlying action in that Baker voluntarily discontinued the underlying action against defendant JAG without plaintiffs’ knowledge, permission or consent, relegating the plaintiffs with only a possibility of recovery of the insurance coverage of $1.3 million underwritten by Liberty Mutual Insurance Company, instead of recovery against the owner of the vehicle, JAG. Plaintiffs claim that from the time Baker’s representation began through the conclusion of the case, it failed to discuss, disclose or otherwise inform them of its decisions which were detrimental to the underlying case and failed to prepare them for their depositions resulting in pre-trial testimony that was deficient, devastating and detrimental to their case. Plaintiffs also allege that Baker failed to properly prepare for the arbitration proceeding in their case which included failing to retain an accident reconstructionist, failing to have up to date medical records and reports available for the arbitrator, and failing to retain an expert with respect to alcohol consumption to refute the claim of plaintiff Mary Braig’s alcohol impairment in the underlying case. The complaint asserts that the arbitrator awarded only $225,000.00 to plaintiffs as a result of Baker’s conduct. In the complaint, plaintiffs seek damages in the amount of five million dollars.

By decision and order dated March 27, 2023, this Court denied Baker’s motion to dismiss and held that plaintiffs stated a cause of action to recover damages for legal malpractice in their amended complaint. Baker filed its answer on April 6, 2023 and filed a third-party summons and complaint on June 20, 2024.

In the third-party complaint, Baker alleges that the legal malpractice of Huston is the proximate cause of the plaintiffs’ alleged monetary damages and the third-party complaint asserts claims for common-law indemnification and for contribution. The third party complaint alleges that plaintiffs retained Huston to represent them in the initial underlying motor vehicle action. Huston acted as the attorney for plaintiffs between May 19, 2017 and September 12, 2018 and had commenced an action on behalf of plaintiffs. Baker was substituted as counsel on or about September 12, 2018. Baker alleges that Huston failed to preserve critical evidence, failed to [*2]engage appropriate or necessary experts, failed to conduct appropriate discovery and otherwise failed to perform its duties as counsel for plaintiffs. For instance, Baker claims that in May 2017, defendant in the underlying action had an expert examine the 2015 BMW. Defendant then returned the leased BMW to the dealership in June 2018. However, Huston failed to have an expert inspect the BMW prior to that time and failed to otherwise preserve any evidence related to the BMW including digital data. According to Baker, this preservation and inspection of the BMW was essential and would allow an accident reconstruction expert to testify on plaintiffs’ behalf. However, due to Huston’s alleged inactions and negligence, the BMW subsequently became inaccessible and unavailable. These actions occurred prior to when Baker was substituted as counsel.”

“The Court finds that Baker failed to state a cause of action against Huston for common-law indemnification, as plaintiffs in their underlying complaint “did not seek to hold [Baker] responsible for another’s wrong,” such as any alleged failure to preserve the 2015 BMW, but “directly charged [Baker] with negligence . . .” Alva v Gaines, Gruner, Ponzini & Novick, LLP, 121 AD3d 724, 726 (2d Dept 2014) (“The Supreme Court also properly determined that the GGP&N defendants failed to state a cause of action against the Marcus attorneys for common-law indemnification, since the Alvas did not seek to hold the GGP&N defendants responsible for another’s wrong, but directly charged the GGP&N defendants with negligence in allowing the statute of limitations to expire in connection with the claims based on Atzl’s November 2005 conduct”).

Moreover, the claims against Baker in the underlying legal malpractice claim are based upon specific actions taken by Baker, including failing to prepare plaintiffs for depositions, discontinuing the action against JAG without consulting plaintiffs and failing to retain an alcohol consumption expert. Thus, Baker’s role in causing plaintiffs’ injuries, if any, would not be “solely passive.” See e.g. Bivona v Danna & Assoc., P.C., 123 AD3d at 958 (“Thus, the documentary evidence submitted by M & S in support of its motion [to dismiss the cause of action for common-law indemnification in the third-party complaint] conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious”).”

“Here, construing the third-party complaint liberally, accepting the facts alleged in the complaint as true, and according third-party plaintiff the benefit of every possible inference, Baker has stated a cause of action to recover for contribution. See e.g. Bivona v Danna & Assoc., P.C., 123 AD3d 956, 959 (2d Dept 2014)( “defendants/third-party plaintiffs properly stated a cause of action [for contribution] alleging that [third-party defendant’s] legal malpractice contributed to the plaintiff’s damages, and documentary evidence did not conclusively establish a complete defense to that cause of action”); see also Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589. As set forth in the examples above, including the failure to preserve the 2015 BMW, the third-party complaint alleges sufficient facts which, if true, would establish that any legal malpractice committed by Huston proximately caused plaintiffs to sustain actual damages, making Huston liable to Baker for contribution. Whether the inadequate arbitrator’s award, among other damages alleged by plaintiffs, was result of either Baker and/or Huston’s negligence is a question of fact. As a result, the third-party complaint sufficiently states a cause of action for contribution.”

Print:
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.