Ofman v. Bluestone

• Court: New York Supreme Court
• Writing for the Court: HON. LARA J. GENOVESI, J.S.C.
• Citation: Ofman v. Bluestone, 2018 NY Slip Op 32040(U), Index No.: 506246/2014 (N.Y. Sup. Ct. Aug 15, 2018)
• Decision Date: 15 August 2018
• Docket Number: Index No.: 506246/2014
• Parties: MENDEL E. OFMAN, Plaintiff, v. ANDREW L. BLUESTONE, ESQ., Defendant. ANDREW L. BLUESTONE, ESQ. Third-Party Plaintiff, v. THE CATAFAGO LAW FIRM, P.C., and JACQUES CATAFAGO, ESQ., Third-Party Defendants.

2018 NY Slip Op 32040(U)

MENDEL E. OFMAN, Plaintiff, v. ANDREW L. BLUESTONE, ESQ., Defendant.

ANDREW L. BLUESTONE, ESQ. Third-Party Plaintiff, v. THE CATAFAGO LAW FIRM, P.C., and JACQUES CATAFAGO, ESQ., Third-Party Defendants.

Index No.: 506246/2014

New York Supreme Court

FILED: August 17, 2018

RECEIVED: August 21, 2018

August 15, 2018

NYSCEF DOC. NO. 135

At an IAS Term, Part 34 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 15^th day of August 2018.

PRESENT: HON. LARA J. GENOVESI, J.S.C.

DECISION & ORDER

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion/Cross Motion/Order to Show Cause and

Affidavits (Affirmations) Annexed

1A

Opposing Affidavits (Affirmations)

Reply Affidavits (Affirmations)

__________

Other Papers: Memoranda of Law in Support and Reply

1B, 3

Introduction

Defendant/third-party plaintiff, Andrew L. Bluestone, Esq., moves by notice of motion, sequence number five, pursuant to CPLR 3211(a)(1), (5) and (7) to dismiss plaintiff's verified second amended complaint dated December 17, 2017, for failure to state a cause of action, based on documentary evidence and based on expiration of the statute of limitations. Plaintiff, Mendel E. Ofman, opposes this application.

Background and Litigation History

The instant matter sounds in legal malpractice and breach of fiduciary duty. There are four prior actions related to the instant action, discussed more fully below. Defendant and third-party plaintiff herein Andrew Bluestone, Esq. represented plaintiff in three of the four prior actions: Campos v. Ofman (Action 2); Ofman v. Ginsberg (Action 3); and Ofman v. Katz (Action 4). "In each of those three cases, Attorney Bluestone took over representation from multiple predecessor counsels" (Memorandum of Law in Support [1B] at p 1).

Ofman v. Campos and Campos (Action 1)

Plaintiff commenced the initial litigation Ofman v. Campos (action 1), index number 14119/2000, sounding in property damage. Plaintiff was represented by Steven Ginsberg, Esq. The matter settled for $5,000.00 before the Hon. Gerard H. Rosenberg on January 15, 2002 (see Notice of Motion [1A], Exhibit B).

Campos v. Ofman (Action 2)

Thereafter, Campos v. Ofman (action 2) was commenced for breach of contract, index number 33007/2002. Plaintiff was represented by Stephen Katz. This litigation resulted in a $55,000.00 jury verdict in favor of Campos (see Memorandum of Law in Support [1B] at p 5). In 2006, Ofman retained Andrew Bluestone, Esq., defendant/third-party plaintiff herein, to appeal the verdict (see Notice of Motion [1A], Exhibit D, Campos v. Ofman Retainer). Pursuant to the retainer agreement dated January 30, 2006, Bluestone was to be paid a flat rate of $3,750.00 to perfect the appeal. Plaintiff was responsible to "pay expenses for printing of the Record on Appeal and Brief, at the rate of $1.50 per page, along with all other expenses and court fees of an Appeal" (id.).

Defendant maintains that "the appeal was properly perfected; the briefs and record were considered by the Appellate Division; and oral argument was had. The Appellate Division, Second Department, affirmed the trial court's judgment on March 4, 2008" (Memorandum of Law in Support [1B] at p 5; see also (see Notice of Motion [1A], Exhibit E, Campos v. Ofman dated March 4, 2008). According to defendant, his "sole involvement [in this action] was perfecting the appeal of the trial court verdict" (Memorandum of Law in Support [1B] at p 4).

Ofman v. Ginsberg (Action 3)

Plaintiff commenced Ofman v. Ginsberg, (action 3) for legal malpractice, index number 1031/2005, against Steven Ginsberg based upon his representation of plaintiff in the Ofman v. Campos matter (action 1). Plaintiff initially retained Stephen Katz, Esq. Katz was discharged, and defendant Bluestone was retained in November 2005 (see Notice of Motion [1A], Exhibit G, Ofman v. Ginsberg retainer). Pursuant to the terms of the retainer agreement dated November 30, 2005, plaintiff was to pay Bluestone an hourly rate of $325.00 per hour, as well as the litigation expenses including usual disbursements (see id.).

Action 3 was dismissed. Bluestone appealed; the Appellate Division reversed and restored the case on November 15, 2011 (see id., Exhibit H, Ofman v. Ginsberg decision dated November 15, 2011). Thereafter, on March 20, 2012, Bluestone was discharged and substituted by Jacques Catafago, Esq. (see id. at Exhibit I, Ofman v. Ginsberg "CPLR 321 Consent"). "Court records demonstrate that successor counsel Catafago waived a jury trial, took the case to trial, and lost on August 8, 2012" (Memorandum of Law in Support [1B] at p 5; see also, Notice of Motion [1A], Exhibit J, Mendel v. Ginsberg E-Courts Printout).

Ofman v. Katz (Action 4)

Plaintiff commenced Ofman v. Katz (action 4) for legal malpractice, index number 17579/2007, against Stephen Katz, based upon his representation of plaintiff in Campos v. Ofman (action 2), and Ofman v. Ginsberg (action 3). Plaintiff initially retained Charles Petitto, Esq. In July 2008, plaintiff discharged Petitto, and retained Bluestone (see Notice of Motion [1A], Exhibit L, Ofman v. Katz retainer). Pursuant to the terms of the retainer agreement dated July 22, 2008, plaintiff was to pay Bluestone an hourly rate of $325.00 per hour, as well as the litigation expenses including usual disbursements (see id.).

The matter was dismissed in August 2009 and Bluestone appealed the decision. The Appellate Division, Second Department, reversed the dismissal and restored the case on November 15, 2011 (see id., Exhibit M, Ofman v. Katz decision dated November 15, 2011). Thereafter, on March 20, 2012, Bluestone was discharged and substituted by Jacques Catafago, Esq. (see id., at Exhibit N, Ofman v. Katz "CPLR 321 Consent"). "Court records indicate that the case was settled during trial on June 16, 2014" (Memorandum of Law in Support [1B] at p 6; see also Notice of Motion [1A], Exhibit O, Ofman v. Katz E-Courts printout).

Ofman v. Bluestone (the Instant Action)

Plaintiff commenced the instant action, index number 506246/2014, by e-filing a summons and complaint on July 9, 2014 (see NYSCEF Doc. # 1). Plaintiff served a verified amended complaint on or about April 10, 2015 (see NYSCEF Doc. # 24). Defendant moved to dismiss plaintiff's complaint on May 29, 2015. The motion was denied by the Hon. Ellen M. Spodek on March 16, 2016, who stated that "[t]here may have been continuous representation of plaintiff by defendant, therefore the motion to dismiss pursuant to CPLR § 3211 (a)(5) is denied" (see Affirmation in Opposition [2], Exhibit C). A preliminary Conference was held on July 28, 2017.¹

Thereafter, plaintiff e-filed a Verified Second Amended Complaint on December 17, 2017 (see Notice of Motion [1A], Exhibit A; see also NYSCEF Doc. # 104). A search of the court record reveals that the parties stipulated that plaintiff shall file a Verified Second Amended Complaint, Bluestone shall respond to "on or before January 26, 2017", and "such Verified Second Amended Complaint shall serve as Plaintiff'soperative complaint against Defendant / Third-Party Plaintiff in this action" (Stipulation dated December 12, 2017, NYSCEF Doc. # 103).²

Plaintiff alleges a first cause of action sounding in "Breach of Fiduciary Duty and Faithless Servant", where he alleges the following,

5. Defendant represented to Plaintiff, orally and in writing, that Plaintiff's legal fees and costs in the Ofman Litigation were recoverable.

6. Defendant knew, or should have known, that as a matter of law, the recovery of legal fees is controlled by the "American Rule," to wit, that each person pays its own legal fees and costs, unless there is a contractual or statutory basis for the recovery of said legal fees.

. . .

11. Further, Defendant engaged in duplicative and unnecessary billing in the Ofman Litigation.

. . .

17. Defendant induced Plaintiff to pay legal fees of $182,190.00 in the course of Defendant's representation of Plaintiff by intentionally or negligently advising Plaintiff that legal fees and costs paid to Defendant could possibly be recovered.

(id. at 1-2).

Plaintiff's second cause of action sounds in negligence, wherein he seeks recovery of the same $182,190.00 in legal fees and costs. Plaintiff alleges that defendant's purported negligence was both the cause in fact and proximate cause of plaintiff's payment of legal fees and costs (see id. at ¶¶ 19-20). It is unclear from the second amended verified complaint when defendant purportedly made representations thatplaintiff's legal fees were recoverable or when plaintiff made this payment for legal fees and costs. He seeks statutory interest running from March 20, 2012 (see id. at ¶ 22), which is the date that defendant was discharged in actions 3 and 4.

Defendant Contends

Defendant contends that plaintiff fails to state a cause of action for legal malpractice. Defendant maintains that plaintiff failed to plead sufficient factual allegations that but for defendant's alleged negligence, plaintiff would have had a more favorable outcome and that this failure caused actual damages (see Memorandum of Law in Support [1B] at p 9-10). Defendant argues that plaintiff failed to properly plead "but for causation" for a claim of legal malpractice (see id. at p 14). Defendant avers that plaintiff merely asserts that defendant negligently advised plaintiff that attorney's fees could not be recovered, however defendant maintains that fees can be recovered in a malpractice action, when they "'were not merely an incident of the litigation but instead, constituted consequential damages' of the malpractice" (id. at 10 quoting Affiliated Credit Adjustors, Inc., v. Carlucci & Legum, 139 A.D.2d 611 [2 Dept., 1988]). Defendant maintains that plaintiff failed to state a cause of action by pleading that defendant was negligent in...