In one of the few applications of Grace v. Law to date, Supreme Court dismisses a legal malpractice case.  More than this rare application of  Grace, the court dismisses on a question of law.

The facts are simple in Dinerman v Fox  2018 NY Slip Op 30127(U)  January 16, 2018  Supreme Court, Kings County  Docket Number: 513181/2016  Judge: Bernard J. Graham .  Husband signs a stipulation to pay 50/50 for his daughter’s college.  When she reaches 21, he decides not to continue paying.  Wife is, as might be guessed, unhappy.

“Fox had represented Dinerman in a divorce proceeding between Dinerman and his spouse, Mary
Bergam (Supreme Court Kings Co., Index No. 52375/13). As part of the divorce proceedings, a preliminary conference was held on August 1, 2013. An order was entered upon stipulation of the parties providing for various interim relief and discovery to be conducted. The August 1, 2013 order (the “Preliminary Conference Order”) provides in the section entitled Pendente Lite Relief, the following:
“The parties shall pay 50/50 the following expenses: Carrying charges on the marital home; college
expenses for Katherine, tutoring and college prep fees for Daniel”.
The plaintiffs legalmalpractice case is rooted in the fact that there is no provision for the plaintiff to
discontinue the college expenses for his daughter Katherine after she turns 21 years of age. It is
plaintiffs contention that, while he voluntarily agreed to stipulate payment of his daughter’s college
tuition, he had been advised by his then attorney (Fox) that he would not be obligated to pay for expenses after his daughter turned 21.”

“The Court has reviewed the decision of Justice Thomas and, based on the well-thought reasoning
contained therein, it is this Court’s opinion that the decision allows for the possibility (or even
likelihood) that Justice Thomas would have ordered Dinerman to bear responsibility for the payment of his daughter Katherine’~ college expenses until she completed college, regardless of whether Dinerman sought to limit his responsibility for the period ending when his daughter turned 21 years of age. If this possibility exists, it would be impossible to find Dinerman’s attorney’s action to be the proximate cause of his alleged damages.

In any event, this Court is compelled to dismiss the action grounded in legal malpractice based upon the accepted case law in New York. As argued by defendant’s counsel, Dinerman can not establish a prima facie case for legal malpractice without establishing that he sought to appeal the decision of Justice Thomas. (See Grace v Law, 24 NY3d 203 [2014]; see also Buczek v Dell & Little, 127 AD3d 1121 [2d Dept. 2015]).

This argument is relevant given that the accepted rule is that a parent is not obligated to support a
child after the child turns 21 years of age (See Family Court Act sec. 413(1); Social Service Law sec.
101(1); Bani-Esraili v Lerman, 69 NY2d 807 [1987]). Based upon the statutory law limiting the
obligation to support his child until she turned 21 years of age and the fact that there was nothing
explicitly stated as to the cut-off of college obligations when his daughter turned 21 years of age, it is
entirely possible that Dinerman would be “likely to succeed” on an appeal of Justice Thomas’ decision.

Consequently his failure to appeal would bar a legal malpractice claim. (Grace v Law, 24 NY3d at 211). Dinerman can not establish that Fox’s alleged negligence proximately caused his damages. “

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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.