Hsu v Liu & Shields LLP  2013 NY Slip Op 30291(U)  February 7, 2013  Sup Ct, New York County
Docket Number: 400781/12  Judge: Richard F. Braun is the story of how one set of plaintiffs lost this case twice, in fact three times.  Plaintiff is pro-se, and complains that he and other plaintiffs were the defendants in a NASD action. "In 2006 the National Association of Securities Dealers issued a decision against plaintiffs and their brokerage firm.  Plaintiffs’ position is that the NASD made a mistake in charging them with violations.  Plaintiffs appealed the NASD decision with the SEC."  They hired defendants to handle the case.  After that it was all downhill.  Plaintiffs allege that defendants "allegedly represented that they would e-file the appeal with the court. Defendants represented the papers were timely filed. Upon plaintiffs’ request, defendants provided plaintiffs with a copy of the allegedly filed notice of appeal. Plaintiffs continued to make inquiry regarding the progress of the appeal, but eventually defendants refused to respond to plaintiffs’ inquiries. Plaintiffs filed a complaint against defendants with the Grievance Committee. Plaintiffs alleged that in responding to the Grievance Committee defendants falsified a letter that defendants had withdrawn as counsel from plaintiffs’ case. Plaintiffs deny receiving any letter, phone call, or email from defendants after February 14, 2008. Other alleged deceptions by defendants were that the SEC decision had never been served on defendants, that the time to appeal had not yet begun to run, and that plaintiffs could still hire another attorney to do the appeal. The Grievance Committee dismissed the plaintiffs’ complaint against defendants. From 2009 to 2011, plaintiffs attempted to appeal the NASD decision. In 201 1, plaintiffs’ action as to the NASD decision was dismissed by the judge because plaintiffs did not appeal the SEC decision, so the appellate remedy was waived. The New Jersey Bureau of Securities used the NASD decision as evidence to revoke plaintiffs’ registrations and assess monetary penal ties against plaintiffs."

"Plaintiffs argue that the legal malpractice claim occurred within the statute of limitations. However, plaintiffs fail to recognize that a legal malpractice claim accrues “when all the facts necessary to the cause of action have occurred” and the court can grant relief (McCoy v Feinman, 99 NY2d 295, 301 [2002]). Plaintiffs’ claim is based on the allegation that defendants failed to timely file an appeal, among other things. Relying on Glamm v Allen (57 NY2d 87, 95 [1982]), defendants note that a claim for malpractice related to a missed deadline accrues when the deadline is missed. The Court stated: “What is important is when the malpractice was committed, not when the client discovered it,” (id.) Plaintiffs also assert a purported fraud claim, forgery, deception, and a breach of agreement, all stemming from the alleged legal malpractice (cf. Melnitzky v Hollander, 16 AD3d 192 [ 1st Dept 20051 [where the fraud and collusion causes of action were dismissed under CPLR 32 1 1 (a) (71, due to their being grounded in the same allegations as the legal malpractice cause
of action]). CPLR 2 14 (6) provides for a three year statute of limitations for “an action to recover
damages for malpractice …, regardless of whether the underlying theory is based in contract or tort.”  Plaintiffs’ action was not commenced within the three year statute of limitations. The continuous representation doctrine does not apply here. Further, defendants representation was limited to the terms of their agreement with plaintiffs. Therefore, the CPLR 321 1 (a) (5) branch of the motion should be granted."

 

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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.