DeMartino v Golden  2017 NY Slip Op 04253 [150 AD3d 1200]  May 31, 2017  Appellate Division, Second Department shows what happens when a case starts out pro-se, attorneys get substituted in and then everything goes wrong.  The summons and complaint were served with a corporation and limited liability company were plaintiffs but were unrepresented.  Defendant attorney was then brought in.  Things only got worse from there.

“The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted by the plaintiffs DeMartino Building Co., Inc., and 150 Centreville, LLC, and denied that branch of the plaintiffs’ cross motion which was to deem the summons and complaint to have been adopted by counsel they retained after the summons and complaint were filed and served. A corporation and limited liability company must be represented by an attorney and cannot proceed pro se (see CPLR 321 [a]; Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 113 AD3d 803 [2014]; Michael Reilly Design, Inc. v Houraney, 40 AD3d 592 [2007]). Here, DeMartino Building Co., Inc., and 150 Centreville, LLC, did not appear by an attorney when the summons and complaint were filed and served. Accordingly, the complaint, insofar as asserted by them, was a nullity, and the action as to them was improperly commenced (see Hilton Apothecary v State of New York, 89 NY2d 1024 [1997]; Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 113 AD3d 803 [2014]; Cinderella Holding Corp. v Calvert Ins. Co., 265 AD2d 444 [1999]).

The Supreme Court also properly granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted by the plaintiff Frank DeMartino. “Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity or near-privity for harm caused by professional negligence” (Fredriksen v Fredriksen, 30 AD3d 370, 372 [2006]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 [2005]). Affording the complaint a liberal construction, accepting the facts alleged therein as true, and according DeMartino the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the complaint fails to plead specific facts from which it can be inferred that [*2]DeMartino was in an attorney-client or fiduciary relationship, privity, or a relationship that otherwise closely resembles privity with the defendants, who were retained to represent DeMartino Building Co., Inc., and 150 Centerville, LLC, in the underlying action. Accordingly, the court properly directed dismissal pursuant to CPLR 3211 (a) (7) of the causes of action alleging legal malpractice and breach of fiduciary duty insofar as asserted by DeMartino (see Fredriksen v Fredriksen, 30 AD3d at 371; Conti v Polizzotto, 243 AD2d 672, 673 [1997]).”

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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.