Did the defendants wait too long to seek attorney fees as prevailing parties?  If they did wait too long, it could be malpractice.  In Smith, Gambrell & Russell, LLP v Telecommunication Sys., Inc.  2017 NY Slip Op 30951(U)  May 5, 2017  Supreme Court, New York County  Docket Number: 653476/2016  Judge: Anil C. Singh sits (in effect) as an Appellate Court and renders judgment on whether the attorneys waited too long.

“Plaintiff law firm Smith, Gambrell & Russell, LLP (“plaintiff’ or “SGR”) moves pursuant to CPLR 321 l(a)(l) and (7) to dismiss defendant Telecommunications Systems, Inc.’ s (“defendant” or “TCS”) counterclaim alleging legal malpractice, ·· contending that it did not miss a statutory 14-day deadline under Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure for filing a motion for attorneys’ fees as the deadline was tolled while post-judgment motions were pending in the underlying federal matter. Defendant opposes the motion. ”

“TCS contends that SGR sought fees based on a sanctions argument not because of difficulties in establishing TCS as the “prevailing party” – the judgment expressly held that TCS was the prevailing party- but because SGR had missed the deadline for an attorneys’ fee application set by Rule 54(d)(2)(B). Neither TCS nor SGR states whether the Court ever decided the motion for sanctions. SGR points out that, after the motion for sanctions was filed, Cassidian and TCS settled their dispute, and all pending actions and appeals were withdrawn by the parties on December 18, 2015 (SGR’s Memorandum of Law dated Nov. 11, 2016, p. 7). The counterclaim asserts a single cause of action for legal malpractice alleging that by failing to file a timely motion for attorneys’ fees, SGR breached its duty of care (Counterclaim, p. 20, para. 96). TCS seeks damages in the sum of $3.4 million. ”

“There are numerous federal cases holding that a motion for attorneys’ fees is timely under Rule 54(d)(2)(B) when filed within 14 days after the entry of judgment, or within 14 days of the resolution of post-judgment motions. For example, in Sorenson v. Wolfson, 170 F.Supp.3d 622 (S.D.N.Y. 2016), the Court held that a postjudgment motion revives the time to seek legal fees regardless of whether or not an initial application was made during the 14-day period following entry of the original judgment (id. at 628). Other federal district and circuit courts have reached the same conclusion (see, for example, SAS Inst .. Inc. v. World Programming Ltd., 2016 WL 3920203, at *3 (E.D.N.C. July 15, 2016) (“After disposition of defendant’s [post~judgment motions], the filing period for attorney’s fees began anew.”); Waltrous v. Bomer, 995 F.Supp.2d 84, 88 (D. Conn. 2014) (“[A] party’s motion for attorney’s fees is timely, unless filed outside the fourteen-day window following the court’s last ruling on any pending [post-judgment] motions.”); Drumgold v. Callahan, 806 F.Supp.2d428, 435 (D. Mass. 2011) (“The overarching rule is that a motion for attorneys’ fees ‘is timely filed if filed no later than 14 days after the resolution of [post-trial motions].”‘) (citing Weyant v. Okst, 198 F .3d 311, 315 (2d Cir. 1999); Chirco v. Charter Oak Homes. Inc., 2008 WL 1743343, at *8 (E.D. Mich. Apr. 11, 2008) (“Where a post-judgment motion has been filed, the time limit shall begin to run upon the denial of the motion.”); Bio-Med. Applications of Tex., Inc. v. BAP-FMC San Antonio, Ltd., 2006 WL 2728915, at *1 (W.D. Tex. July 7, 2006) (“Plaintiffs motion for attorney’s fees was filed within fourteen days of the order disposing of plaintiffs [post-judgment motion]  The motion is therefore timely.”) It is noteworthy that in four of the above cases, the prevailing party filed a motion for attorneys’ fees after the initial 14-day deadline expired. Likewise, we note that TCS has not cited a case setting forth an inflexible – and arguably irrational – holding that a motion for attorneys’ fees should have been filed within 14 days of the initial entry of judgment even where post-judgment motions were filed .”

“The documentary evidence shows unambiguously that post-judgment motions were filed in the Cassidian matter; the Court issued its final ruling on the postjudgment motions on April 20, 2015; and on May 4, 2015, SGR made a timely motion to recover legal fees as a sanction (Rosenthal Aff., exhibits C, D, E, F). The Court finds that the documentary evidence utterly refutes the allegation that SGR failed to make a timely motion for attorneys’ fees. The counterclaim fails to state a cause of action for malpractice predicated on the missed deadline. Accordingly, it is ORDERED that the motion is granted, and the counterclaim is dismissed pursuant to CPLR 321 l(a)(l) and (7) without leave to replead. ”

 

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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.