Xiuwen Qi v Hang & Assoc., PLLC 2025 NY Slip Op 30306(U) January 24, 2025 Supreme Court, New York County Docket Number: Index No. 151821/2023 Judge: Mary V. Rosado discusses the exception to mandatory arbitration of attorney fee claims. Here, Plaintiff sued the law firm, and the law firm counterclaimed for fees. Is that counterclaim subject to mandatory arbitration or not? Answer: it is not.

“Plaintiff, who was a former client of Defendants, is seeking damages arising from Defendants’ alleged malpractice in a wage and hour lawsuit. In response to Plaintiff’s Complaint, Defendants asserted a counterclaim alleging quantum meruit damages arising from 134 hours of labor representing Plaintiff in his wage and hour dispute and $1,172.70 in costs (see NYSCEF Doc. 10). In Motion Sequence 001, Plaintiff moved to dismiss Defendants’ counterclaim arguing that this Court lacks subject matter jurisdiction over the quantum meruit counterclaim pursuant to the mandatory arbitration requirements of the Attorney Fee Dispute Resolution Program. In opposition, Defendants argued that the quantum meruit counterclaim is not subject to arbitration as resolution of the quantum meruit counterclaim involves resolving legal issues which are intertwined with Plaintiffs non-arbitrable malpractice claim. At oral argument dated October 31, 2023, this Court declined to rule on the motion to dismiss until the parties’ retainer agreement was produced. In a Decision and Order dated May 2, 2024 (NYSCEF Doc. 55), this Court denied the motion to dismiss, without prejudice, with leave to renew upon production of the retainer agreement. Plaintiff has produced the retainer agreement and seeks leave to renew his motion to dismiss. Defendants oppose Plaintiffs renewed application and argues nothing in the retainer agreement should change this Court’s decision to deny dismissal of Defendants’ counterclaim.”

“Claims and counterclaims involving substantial legal questions, including professional malpractice or misconduct, are not subject to arbitration under 22 NYCRR 137.l(b)(3) (see also Peters v Collazo Florentino & Keil LLP, 117 AD3d 432 [1st Dept 2014]). Whether Defendants have a quantum meruit claim necessarily hinges on whether they were terminated for cause, which is inextricably intertwined with the issues being litigated in this legal malpractice case (see also Brill & Meisel v Brown, 113 AD3d 435, 436 [1st Dept 2014]). Because the counterclaim’s existence is dependent on the resolution of the legal malpractice claim being litigated in this Court, the Court retains subject matter jurisdiction, and upon renewal, Plaintiff’s motion to dismiss is denied. The branch of Plaintiff’s motion seeking leave to reargue is denied as Plaintiff has failed to show that the Court overlooked any dispositive issues of fact or l”aw.

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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.