In Amoia v Mandelbaum Barrett, P.C. 2025 NY Slip Op 30175(U) January 17, 2025 Supreme Court, New York County Docket Number: Index No. 150936/2024 Judge: Paul A. Goetz, a fairly common scenario is depicted. This oft-repeated trope is found in medical malpractice settings, especially when the need for an expert arises.

In medical malpractice claims, a Certificate of Merit is required, and that Certificate requires a physician to review the materials and assert that there is merit to the medical malpractice claim. This is much less involved and lesser than a CPLR 3101 expert. Many law firms seek to be relieved at the time that a CPLR 3101 trial expert is necessary, as they may not find one, or don’t wish to pay the expense.

Here, the law firm filed the case and then told the client that they would not serve the complaint, nor find a physician to make the Certificate of Merit. Who, then, is at risk?

“Plaintiff, Kristen Amoia retained defendant law firm, Mandelbaum Barrett, P.C. (the
“firm”) to represent her following the death of her husband, Patrick Amoia on May 1, 2020. Defendant claims that the firm was unable to obtain expert support for plaintiff’s claims of wrongful death and medical malpractice and concluded there was no reasonable basis to commence the action. Defendant did however, file the action on plaintiff’s behalf to protect her interests while she sought new counsel (Kristen Amoia v. Good Samaritan Hospital Medical Center et al., Index No 616626/2022, Suffolk County Supreme Court) [the “Underlying Action”]. On August, 23, 2022 defendant informed plaintiff that it would not be taking any further actions in the case and informed her to notify her new counsel, about the time frame toserve the complaint (NYSCEF Doc No 12).

As of at least January 6, 2023, Plaintiff was represented by her attorney in this action, in the underlying action. Plaintiff’s present attorney served the defendants in the underlying action on April 18, 2023 (Index No 616626/2022; NYSCEF Doc Nos 3 – 17). The defendants in the underlying action moved to dismiss based on lack of personal jurisdiction, and the court granted the unopposed motions (Index No 616626/2022; NYSCEF Doc Nos 53 – 55). Plaintiff’s current counsel then moved to vacate the dismissals but the motion was denied on September 11, 2023 (NYSCEF Doc No 93).”

“Plaintiff’s second theory is that defendant was negligent by failing to serve the
defendants in the underlying action with the pleadings within 120 days after filing as required by CPLR § 306-b. Defendant argues that immediately upon commencing the action, plaintiff was informed that defendant would be terminating its representation of plaintiff and that it would not be serving the underlying action defendants.

Defendant submits an e-mail sent to the firm by plaintiff on August 18, 2022 where she stated that she was working with new counsel who wanted to commence the action the next day (NYSCEF Doc No 11). Defendant also submits an email sent by firm partner, Michael F. Bevacqua Jr. to plaintiff on August 23, 2022 (NYSCEF Doc No 12). In that e-mail Bevacqua states that after consulting with a physician, defendant he believed that he “could not provide the attestation that I believe there is a reasonable basis for the commencement of the action, as required under CPLR 3012-a(1)” and thus would be terminating the firm’s representation of plaintiff (id.). He goes on to state that defendant filed the complaint as a courtesy to plaintiff in order to preserve her claims, but the firm “will not be serving the Complaint upon the defendants, filing a Certificate of Merit, or performing any further services of any kind or nature for [plaintiff]” (id.). Plaintiff does not dispute the authenticity of these emails.

Defendant also notes that the three motions in the underlying action which dismissed the claims against all the underlying defendants because they were not served, and the court lacked personal jurisdiction over them, were unopposed by plaintiff’s new counsel (NYSCEF Doc Nos 15 – 17). Nor did plaintiff’s new attorney make any effort to serve the underlying defendants, or move for an extension in time to effectuate service. Further, after plaintiff’s new counsel made a motion to vacate the dismissals, he failed to present the argument that the statute of limitations had been tolled, and therefore the wrongful death claim was not time-barred. The court in the underlying action ultimately denied the motion to vacate because plaintiff’s counsel was “unable to demonstrate that the action is meritorious” (NYSCEF Doc No 18). Therefore, “the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively
establishing a defense as a matter of law” (Phillips, 152 AD3d at 806).”

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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.