It takes a while to work through the events of Josephs v AACT Fast Collections Servs., Inc. 
2017 NY Slip Op 08357  Decided on November 29, 2017  Appellate Division, Second Department and to determine whether it was a mistake not to oppose a motion for dismissal.  Near the end of the decision we see what appears to be the determining factor:  the case remains good against one of the corporate forms of the law firm.

“The plaintiffs commenced this action, inter alia, to recover damages for legal malpractice against Lubarsky & Tarnovsky Attorneys and Counselors at Law, P.C. (hereinafter L & T), and another defendant by summons and complaint filed August 23, 2012. On or about December 9, 2014, the plaintiffs moved for leave to amend the caption of the action to add Leon Lubarsky, Rada Tarnovsky, and another person as additional defendants. Lubarsky and Tarnovsky opposed the motion, arguing that the statute of limitations had elapsed. In reply, the plaintiffs contended that the relation-back doctrine applied. In an order dated August 11, 2015, the Supreme Court, inter alia, granted those branches of the plaintiffs’ motion which were for leave to amend the [*2]caption to add Lubarsky and Tarnovsky as defendants and directed the plaintiffs to serve the amended complaint upon all parties within 20 days of the order. Lubarsky and Tarnovsky appeal.

Thereafter, L & T, Lubarsky, and Tarnovsky moved pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against them for lack of personal jurisdiction. The plaintiffs did not oppose the motion. In an order dated March 16, 2016, the Supreme Court, inter alia, denied the motion. L & T, Lubarsky, and Tarnovsky appeal.

As to the order dated August 11, 2015, the Supreme Court properly granted those branches of the plaintiffs’ motion which were for leave to amend the caption to add Lubarsky and Tarnovsky as additional defendants, since the plaintiffs established the applicability of the relation-back doctrine (see Castagna v Almaghrabi, 117 AD3d 666, 667; Austin v Interfaith Med. Ctr., 264 AD2d 702, 703-704). Therefore, the August 11, 2015, order must be affirmed insofar as appealed from.

As to the order dated March 16, 2016, the Supreme Court should have granted those branches of the motion of L & T, Lubarsky, and Tarnovsky which were pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against Lubarsky and Tarnovsky for lack of personal jurisdiction. The affidavits of service filed by the plaintiffs, indicating that they attempted to effect service of the supplemental summons and amended complaint upon Lubarsky and Tarnovsky pursuant to CPLR 308(2), fail to indicate that the process server mailed the supplemental summons to either of these defendants. “Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with” (Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989; see Washington Mut. Bank v Murphy, 127 AD3d 1167, 1174). Therefore, the affidavits of service did not establish, prima facie, that service was properly effected pursuant to CPLR 308(2) (see Daguerre, S.A.R.L. v Rabizadeh, 112 AD3d 876, 878-879; cf. Roberts v Anka, 45 AD3d 752, 753-754). We note that “[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents” (Raschel v Rish, 69 NY2d 694, 697; see County of Nassau v Letosky, 34 AD3d 414, 415; Long Is. Sav. Bank v Meliso, 229 AD2d 478). Since the plaintiffs failed to submit any evidence that the requirements for service of process were met with respect to Lubarsky and Tarnovsky, the court should have directed the dismissal of the amended complaint insofar as asserted against those defendants pursuant to CPLR 3211(a)(8).

With respect to L & T, however, the record includes an affidavit of service from a process server indicating that service upon L & T in this action was effected by delivery of the original summons and complaint to the Secretary of State, which creates a presumption of proper service on L & T (see CPLR 311[a][1]; Business Corporation Law § 306; Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1164). Since L & T did not submit any evidence to rebut this prima facie showing of proper service, the Supreme Court properly denied that branch of the motion which was pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against L & T for lack of personal jurisdiction.”

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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.