It’s difficult to say which is the more perplexing problem in this case.  Is it the loose procedure in which a client put down $ 1.1 million on a condo with few safeguards, or the manner in which the legal malpractice case is being handled?  in Cheong v Lau  2012 NY Slip Op 30725(U)  March 1, 2012  Supreme Court, Queens County  Docket Number: 22266/09  Judge: Darrell L. Gavrin we see both.

The legal malpractice case handling first.  Defaults, late cross-motions, what appears to be pro-se defendants, and missed deadlines are how this legal malpractice case begins.

Worse is how this real estate transaction took place.  "On July 13, 2007, plaintiffs met with Tso, a sales agent, and Lee, the principal of Paramount, whereupon plaintiffs agreed to purchase a condo unit and a parking space in a building owned by Paramount for $628,000 with a $100,000 down payment. On that same date, plaintiffs and Lee signed a terms sheet outlining the terms of the purchase. On July 19, 2007, plaintiffs retained the Lau defendants to represent them in the purchase of the condo unit and parking space. On July 25, 2007, plaintiffs and Paramount executed a contract of sale for the condo unit and parking space, and plaintiffs issued to Paramount’s attorney a check for $100,000 as the down payment. The contract did not provide for a condominium offering plan approved by the New York State Attorney General’s Office. On July 27, 2007, the down payment was released to Paramount. On February 5, 2008, plaintiffs and Paramount executed a second purchase contract, which included an approved condominium
offering plan, and plaintiffs issued an additional $5,000 down payment. At that time, Jay Lau
told plaintiffs that the $100,000 down payment would be considered a loan to Paramount and
that Lee would personally guaranty the loan. Plaintiffs received a promissory note stating
that the $100,000 would be applied to the purchase price upon closing. It is undisputed that
Paramount never satisfied the promissory note and title to the condo unit has never been
transferred to plaintiffs. Meanwhile, in January 2008, Tso asked plaintiffs to lend Paramount
$1,000,000 for a period of six months to complete construction on the building. Plaintiffs
agreed to the loan and retained the Lau defendants to represent them in the transaction. Mr.
Lau drafted the loan documents, which he advised plaintiffs would create a mortgage lien on
the property. According to its terms, Lee also personally guaranteed the mortgage. On
February 8, 2008, plaintiffs executed the mortgage documents and wired $1,000,000 to
Golden Eagle Capitol Corporation, as requested by Lee. On February 10, 2009, the mortgage
was recorded. Paramount and Lee never made any payments on the mortgage. Soon
thereafter, plaintiffs received notice that Chinatrust Bank was seeking to foreclose on its
mortgage against the subject property. On August 14, 2009, plaintiffs commenced the within
action alleging causes of action for legal malpractice and fraud against the Lau defendants,
causes of action for fraud against Paramount, Lee, and Tso, and claims to recover on the
$100,000 promissory note and personal guaranty of the note against Paramount and Lee,
respectively. " 

In this case, there has been a break-down of the orderly pleadings stage.

"The court will not entertain Tso’s untimely cross motion to dismiss the complaint and all cross claims asserted against him pursuant to CPLR § 3211 (a) (1) and/or CPLR § 3212. A cross motion for summary judgment pursuant to CPLR § 3212 made after the expiration of the statutory period or court-ordered deadline may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made on grounds nearly identical to that of the cross motion (see Grande v Peteroy, 39 AD3d 590 [2d Dept  2007]). Here, Tso’s cross motion for summary judgment was served 20 days after the court-ordered deadline of October 1, 2011. Tso has not offered any excuse for the delay in making the cross motion (see Thompson v Leben Home for Adults, 17 AD3d 347, 348 [2d Dept 2005]). Moreover, the issues presented by Tso’s cross motion and the separate motions for summary judgment by plaintiffs and the Lau defendants are not nearly identical. Tso’s cross motion seeks summary judgment dismissing plaintiffs’ complaint insofar as asserted against him, whereas plaintiffs’ motion only seeks summary judgment on their causes of action against the Lau defendants, Paramount, and Lee. In addition, while Tso’s cross motion seeks summary judgment dismissing the Lau defendants’ cross claim for contribution or common-law and/or contractual indemnification against him, the Lau defendants’ summary judgment motion seeks dismissal of plaintiffs’ complaint insofar as asserted against  them and the cross claim by Paramount, Lee, and Tso for contribution against them. Under these circumstances, the cross motion is time-barred (see Podlaski v Long Is. Paneling Ctr. of Centereach, Inc., 58 AD3d 825, 826-827 [2009]; Bickelman v Herrill Bowling Corp., 49 AD3d 578 [2d Dept 2008]). Likewise, Tso’s cross motion to dismiss plaintiffs’ complaint and all cross claims asserted against him pursuant to CPLR § 3211 (a) (1) is untimely since it was not made within the time period during which defendants were required to serve an answer (CPLR
§ 3211 [e]; see Bennett v Hucke, 64 AD3d 529, 530 [2d Dept 2009]; see also Siegel, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:52)."

 

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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.