By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesToo speculative is a defense commonly utilized by defendants in legal malpractice settings. Here, in Birch v Novick & Assoc., P.C. 2019 NY Slip Op 31712(U) June 14, 2019 Supreme Court, New York County Docket Number: 161445/13, Justice Carol R. Edmead discusses just how speculative they might be. “Defendants argue that the complaint must be dismissed, as Plaintiff… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesWe have argued that legal malpractice cases are disproportionately subject to early dismissal. Our theory is that Courts have an inherent and innate bias in favor of attorneys. There is a plethora of academic and real world experience to support this thesis. Anecdotally, Baugher v Cullen & Dykman, LLP 2019 NY Slip Op 04904 Decided on June… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesA motion in limine is an advisory pre-trial evidentiary ruling. A motion for summary judgment is a dispositive motion which seeks to limit a claim or a recovery. In Mazzurco v Gordon 2019 NY Slip Op 04931 Decided on June 19, 2019 Appellate Division, Second Department the motion in limine succeeded. “In this action to recover damages for legal… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThe question of statute of limitations in a professional negligence setting is little different from that the same issue in a legal malpractice setting. CPLR 214(6) is the applicable statute in both and both have the concept of continuing representation. Board of Mgrs. of 141 Fifth Ave. Condominium v 141 Acquisition Assoc. LLC 2019 NY Slip Op 31555(U) June… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesAs proof that Judiciary Law § 487 has entered the mainstream, and will likely be snapchatted soon, take a look at Delbaun v Self Represented Kevin McKeown May 30, 2019 Supreme Court, New York County Docket Number: 157986/2018 Judge: Andrew Borrok. First, the names. Is the caption not a tip off that this is a case with craziness in it? Second,… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesOwner A performs work in a NYC building. Owner B is damaged. Owner B sues Owner A as well as the building. Lots of attorney fees are generated. Owner B then sues the attorneys for the Board for legal malpractice. Standing? No. Derivative claim on behalf of the Board. No. Second chance? Yes. “This action… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThe Appellate Division gave explicit advice, not often heard, on how to deal with an Order to Show Cause which a judge declines to sign. In the end, everyone seems to have done it wrong. In Cypress Hills Mgt., Inc. v Lempenski 2019 NY Slip Op 04677 Decided on June 12, 2019 Appellate Division, Second Department waded into… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesDillon v Peak Envtl., LLC 2019 NY Slip Op 04548 Decided on June 7, 2019 Appellate Division, Fourth Department is the story of an upstate commercial case which went through a lot of procedural wrangling, up to the Appellate Division, with little forward movement. Legal malpractice is an important but not properly plead part. “Memorandum: Plaintiffs commenced this… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesIt seems as if the Appellate Division scratched its head on this claim of legal malpractice. It seemed not sure how to calculate the claimed departure from good practice. In Kaplan v Conway & Conway 2019 NY Slip Op 04477 Decided on June 6, 2019 Appellate Division, First Department it questioned the foundation of the legal malpractice case. “The… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesLet’s assume that an attorney fails to make sure that there is a certificate of occupancy for the finished version of a home, and then a tree falls on the house, do we know enough to determine whether there was legal malpractice? We fall into a familiar trap if our analysis ends with identification of… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesFrom time to time we discuss Judiciary Law § 487, the ancient common law statute. It is perhaps the oldest common law statute, post-dating the Magna Carta (1215) by only 60 years. It was imported into the common law at the birth of our nation. Over time refinements and embellishments have been added, including the requirements… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesNaivete is the assigned cause of the sale of a building without full payment, but legal malpractice is the claimed reason. Problem? Plaintiff started the action 4 years after the sale. Hudson 418 Riv. Rd., LLC v Safiya Consultants Inc. 2019 NY Slip Op 31506(U) May 24, 2019 Supreme Court, Kings County Docket Number: 510351/18 Judge: Leon Ruchelsman is a short… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesIn what looks like a 9 year battle over attorney fees and legal malpractice allegations, it appears that everyone loses in this case. Filemyr v Hall 2019 NY Slip Op 31526(U) May 28, 2019 Supreme Court, New York County Docket Number: 654563/2018 Judge: Andrew Borrok discusses limitations on attorney fee claims and the necessity of making concrete allegations of legal malpractice.… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesPro-se cases, as might be expected, often wash up on the rocks because of poor technical application. In Strujan v Kaufman & Kahn, LLP 2019 NY Slip Op 00630 [168 AD3d 1114] January 30, 2019 Appellate Division, Second Department we see failed service of the summons, denied default motions and a direction that all motions be made by… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesSang Seok NA v Schietroma 2019 NY Slip Op 04017 Decided on May 22, 2019 Appellate Division, Second Department is the story of a bus accident, followed by hears of personal injury litigation again followed by years of legal malpractice litigation. In the end, not much was accomplished. “In May 2003, the plaintiff commenced a personal injury action… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesClients want results, and are sometimes hesitant about paying bills. Lawyers want to get paid, whether they are in good relations with the client or not. Let me repeat: Lawyers want to get paid. The greater portion of cases in which lawyers are parties concerns attorney fees. This is amply demonstrated by Adam Leitman Bailey, P.C.… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesA lawsuit arising from the 2008 stock market decline, involving whether there was downside protection, and what the attorney who was hired to pursue the brokerage did or did not do proceeds. Finkel v Wedeen 2019 NY Slip Op 31395(U) May 9, 2019 Supreme Court, New York County Docket Number: 161019/2015 Judge: Paul A. Goetz survives summary judgment in this opinion.… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesAdmissions that the law firm made a mistake are frowned upon by insurance companies as well as by CLE lecturers. Ortiz v Joel J. Turney, LLC 2019 NY Slip Op 03917 Decided on May 21, 2019 Appellate Division, First Department is a fine example for use in this years lecture series. “Order, Supreme Court, Bronx County (Lucindo Suarez,… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesPro-se claims start at a disadvantage. This particular case seems to be the culmination of several failed efforts. The Appellate Division is dismissive, both in tone and content. Estate of Lipin v Lipin 2019 NY Slip Op 03897 Decided on May 16, 2019 Appellate Division, First Department could be a shorter opinion, but not by much. This is… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesWhether it’s social policy, whether it’s an attempt to prevent every case from turning into a legal malpractice coda, the rule is simple: absent fraud, collusion, malice or other special circumstances you just cannot successfully sue the other guy’s attorney. The alternative? Every case would then proceed to a legal malpractice case. So says Hinnant v… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesDelay in obtaining adverse evidence and overbilling are both claimed in Ostrolenk Faber LLP v Sakar Intl., Inc. 2019 NY Slip Op 31303(U) April 23, 2019 Supreme Court, New York County Docket Number: 657134/17 Judge: Melissa A. Crane. Only one of the claims works in a legal malpractice setting. It is not overbilling. Plaintiff Ostrolenk Faber LLP (Ostrolenk), a law… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesWhat could be more New York than a case about real estate and parking? Here, the problem was construction of two homes, each of which required off-street parking. The seller set up a situation in which both houses had the parking, but it all got screwed up. Muco v Sadiku 2019 NY Slip Op 50709(U) Decided on… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesA real estate deal gone wrong…what could be more New York than that? In our world, only a legal malpractice claim after the deal is more relevant. 83 Willow, LLC v Apollo 2019 NY Slip Op 31203(U) May 2, 2019 Supreme Court, New York County Docket Number: 151266/2015 Judge: Barbara Jaffe is the story of a client, an attorney and… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesIn an artificial social policy sort of way, lawyers protect lawyers. Although legal malpractice is a tort (maybe), there is still a requirement of privity. Remembering back to law school and the progression in products liability from a strict requirement of privity for a recovery from the manufacturer to strict liability, we wonder if the… Continue Reading
