By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsLegal Malpractice claims accrue at the time a mistake is made. The Statute of limitations in legal malpractice, three years, is a difficult and high barrier to overcome. Continuous representation may toll the running of the statute, but social policy has set a number of elements required for continuous representation to be permitted. Stein Indus., Inc.… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsWhat is discoverable and what is not discoverable in a professional negligence setting influences the viability of the claims. Attorney-Client privilege, work-product privilege and burdensomeness are all considerations in whether the material is discoverable. Judge Shulman gives a cogent explanation of the competing arguments in American Med. Alert Corp. v Evanston Ins. Co. 2018 NY Slip… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsProfessional malpractice, other than for physicians and some medical providers is three years. Even with tolling for continuous representation, that three years can go by very quickly. In Schembre v Saggese 2018 NY Slip Op 30191(U) February 1, 2018 Supreme Court, New York County Docket Number: 656328/2016 Judge: Saliann Scarpulla too much time went by for plaintiffs to continue the case.… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsAccountants and stock-financial advisers are professionals for the purpose of the statute of limitations. For this reason the doctrine of “continuous representation” can apply. Reville v Melvin Ginsberg & Assoc. 2017 NY Slip Op 30821(U) April 20, 2017 Supreme Court, New York County Docket Number: 152167/2015 Judge: Joan M. Kenney gives some explanation on how to calculate the statute of limitations… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice Basics,UncategorizedLast week we discussed how the First Department differs in its handling of Judiciary Law § 487 cases. Here in Gorbatov v Tsirelman 2017 NY Slip Op 07979 Decided on November 15, 2017 Appellate Division, Second Department is a further lesson, this time from the Second Department. Conspicuously missing here is any language of delinquency. The Second Department… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsThe jury system, along with the CPLR structure of motions and appeals can be cumbersome, long, but ultimately comforting. In contrast, the arbitration system plays to a single individual or tribunal, with no margin for reassessment. So went a case reported in the New York Law Journal, and sometime in the future will be determined… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsPrivity between client and attorney is mirrored by the doctrine of the lack of a doctor-patient relationship. Forget that there was a failure to diagnose breast cancer, and that the result can be deadly. Social policy of limiting suits between patients and remote medical providers as well as the social policy of limiting legal malpractice… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsIn an otherwise run-of-the-mill contract case between an IT provider and a bank, Justice Kornreich illustrates a couple of interesting principles. The first is that IT providers do not rise to the level of professional engineers for the purpose of allowing tort litigation against them. The second is the “economic loss doctrine.” Cervalis LLC v… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsIn this legal malpractice case, the attorney has the right to represent himself. Question: How does insurance filter into this? In Herczl v Feinsilver 2017 NY Slip Op 06528 Decided on September 20, 2017 Appellate Division, Second Department “In 2010, the defendant David Feinsilver, an attorney, commenced representing the plaintiff in a legal matter unrelated to this action. While… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice Basics,UncategorizedWe’re proud to present our “Judiciary Law § 487 Suffers an Earthquake” article from today’s New York Law Journal. It discusses the recent sweep of JL § 487 law, including Bounkhoun v. Barnes et al., Case No. 15-cv-631A, which now awaits a decision by District Judge Joseph Arcara whether to accept the recommendation. A recent Judiciary Law §487 case… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsMaroulis v Sari M. Friedman, P.C. 2017 NY Slip Op 06437 Decided on September 13, 2017 Appellate Division, Second Department is a textbook example of why approximately 40% of Judiciary Law § 487 cases are dismissed. The Courts don’t really like them, and lack of damages proximately caused by the violation is the stated reason. Here, the legal… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsOnce in a while a case captures your interest. This was the situation in Gevorkyan. Sure, this was outside of legal malpractice and professional liability, but a former client came to us with a problem. He had been arrested for financial crimes, and bail was set at $2 Million. He paid a bail bond premium,… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsSchmidt v One N.Y. Plaza Co. LLC 2017 NY Slip Op 06047 Decided on August 8, 2017 Appellate Division, First Department is not a legal malpractice case, but it is a well written decision setting forth how experts battle in a summary judgment case. Plaintiff slips/falls from a ramp while at work. His job is to lead… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsWe go on and on about Judiciary Law 487, but today’s post is about a different statute, Judiciary Law 475, which regulates attorney fees. Here are some basics: There has to be a settlement in open court and no signed writing reflecting that the client authorized the purported settlement. Hence, no lien. Baker v Restaurant… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsThe family is large, and the husband has been married at least twice. There are adult children from the first marriage, and the husband has significant sums of money. What is this? It is a recipe for internecine war; of course, it is over money. Did Dad fraudulently and wrongfully give the adult kids… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsYesterday, we spoke about commercial litigation, intra-company claims and how minority shareholders can bring claims that attorneys for the corporation or the majority shareholders have wronged them. Yesterday, it was “legal malpractice.” Today it’s “breach of fiduciary duty.” Exeter Law Group LLP v Wong 2016 NY Slip Op 32425(U) December 9, 2016 Supreme Court, New York County Docket… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsCentre Lane Partners, LLC v Skadden, Arps, Slate, Meagher & Flom Llp 2016 NY Slip Op 32136(U) October 21, 2016 Supreme Court, New York County Docket Number: 651721/16 Judge: Barry Ostrager explains the borrowing statute in the dismissal of this legal malpractice case which took place in Oregon. “The underlying facts are as follows. For many… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsAside from the fact that almost all of the parties to this transaction, as well as to the legal representation are dead, the point of this case is that courts will not allow speculation on what advice might have been given and how a specific person might have reacted to that advice, when there is… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsGerschel v Christensen 2016 NY Slip Op 06794 Decided on October 18, 2016 Appellate Division, First Department brings up the inexplicable question of why plaintiffs wait so long to bring an action. A trust dissolves, and plaintiffs don’t get their money. They have either 3 or 6 years in which to sue. However, nine years… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsIt is almost universally said at Legal Malpractice (or Professional Responsibility) CLEs that suing your clients for legal fees not paid is the surest source of a legal malpractice counterclaim. Legal fee billing appears, anecdotally, to be the largest category of litigation involving attorneys. Exeter Law Group LLP v Immortalana Inc. 2016 NY Slip Op 31913(U)… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsThe Appellate Division was shockingly clear in its enunciation of this standard, with which we were not familiar. Plaintiffs created a unique investment strategy, and marketed it. The IRS found fault, and assessed promoter penalty fines in excess of $7 Million. Defendant law firm filed a bankruptcy petition, and the litigation started. Unfortunately for Plaintiffs,… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsThey’re the same, no? Well, no. Malpractice is the negligence of professionals, and simple negligence is the failure to use reasonable means. However, Judge Mendez does a much better job of explaining in All Craft Fabricators, Inc. v Syska Hennessy Group, Inc. 2015 NY Slip Op 32239(U) November 23, 2015 Supreme Court, New York County Docket Number:… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsSometimes short and concisely written opinions contain much information. The basics of Jefferson Apts., Inc. v Mauceri 2016 NY Slip Op 26230 Decided on July 25, 2016 Supreme Court, Queens County Ritholtz, J. are simple. An accounting firm is hired to oversee the basic accounting needs of a corporation. Lots of money is missing. It… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice BasicsThe conduct is not easily explainable. A law firm is hired to become escrow agent for a real estate venture, and to earn fees while preparing and filing mortgages. Inexplicably, the law firm simply stops filing the mortgages. The result is predictable. TSR Group, LLC v Levitin 2016 NY Slip Op 31322(U) July 13, 2016… Continue Reading
