In one stunning paragraph, in Campbell v Law Off. of Solomon Rosengarten 2025 NY Slip Op 04700 Decided on August 20, 2025 the Appellate Division, Second Department illustrates the oft-unheard of exception to the standard commencement date for the statute of limitations in legal malpractice.

The paragraph is highlighted here: “”To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Katsoris v Bodnar & Milone, [*2]LLP, 186 AD3d 1504, 1505 [internal quotation marks omitted]). A cause of action to recover damages for legal malpractice must be commenced within three years from the time of accrual (see CPLR 203[a]; 214[6]). “A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735; see McCoy v Feinman, 99 NY2d 295, 301). “‘A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'” (Lee v Leeds, Morelli & Brown, P.C., 233 AD3d 1072, 1077, quoting McCoy v Feinman, 99 NY2d at 301; see Farage v Ehrenberg, 124 AD3d 159, 163).

Here is the decision in fuller context:

“ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice as time-barred is denied.

The defendants, Solomon Rosengarten and his law firm, represented the plaintiff, Patrick A. Campbell, in a personal injury action that was commenced in December 1994 in the Supreme Court, Kings County (hereinafter the personal injury action). In September 1995, the personal injury action was transferred to the Civil Court, Kings County, but there were no further proceedings in that court on the action until after 2017. In December 1995, Rosengarten appeared at two depositions on behalf of Campbell in the personal injury action.

In 2016, Campbell executed a consent to change attorneys form and filed it in the Supreme Court, Kings County. Campbell then moved in the Supreme Court to restore the action to the active calendar, for summary judgment on the issue of liability, and for leave to file a note of issue. In an order dated November 22, 2017, the motion was denied without prejudice to refile in the Civil Court, Kings County. Campbell then moved in the Civil Court to restore the action to the active calendar and for summary judgment on the issue of liability. In an order dated December 10, 2019, the Civil Court denied the motion (hereinafter the Civil Court order).

In January 2020, Campbell commenced this action, inter alia, to recover damages for legal malpractice. The defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice as time-barred. In an order dated May 25, 2023, the Supreme Court, inter alia, granted that branch of the motion. Campbell appeals.

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Katsoris v Bodnar & Milone, [*2]LLP, 186 AD3d 1504, 1505 [internal quotation marks omitted]). A cause of action to recover damages for legal malpractice must be commenced within three years from the time of accrual (see CPLR 203[a]; 214[6]). “A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735; see McCoy v Feinman, 99 NY2d 295, 301). “‘A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'” (Lee v Leeds, Morelli & Brown, P.C., 233 AD3d 1072, 1077, quoting McCoy v Feinman, 99 NY2d at 301; see Farage v Ehrenberg, 124 AD3d 159, 163).

Here, the cause of action alleging legal malpractice was premised on the defendants’ neglect of the personal injury action. As pre-note of issue delay of a pending action is not necessarily injurious (see generally Lopez v Imperial Delivery Serv., 282 AD2d 190, 191), the actionable injury in this case did not occur until the issuance of the Civil Court order, which prevented the plaintiff from further prosecuting the personal injury action (see Golden Jubilee Realty, LLC v Castro, 196 AD3d 680, 683; Frederick v Meighan, 75 AD3d 528, 532; see also Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531). Therefore, the cause of action alleging legal malpractice was timely, since it was asserted within three years of the issuance of the Civil Court order.”

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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.

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