Pinkesz Mut. Holdings, LLC v Pinkesz  2021 NY Slip Op 05359  Decided on October 6, 2021 Appellate Division, Second Department makes an interesting distinction between “civil fraud upon the court” and Judiciary Law §487.  There is a question raised (and not decided) whether certain conduct during the course of litigation can give rise to a private cause of action outside of Judiciary Law § 487,

“The Supreme Court also should have granted dismissal of Edward’s and Anthony’s third-party causes of action alleging violations of Judiciary Law § 487, which are asserted against Rubenstein, Horowitz & Rubenstein, Feder, RESF, Goldberg, and Herrick Feinstein. As a threshold matter, neither Rubenstein nor Horowitz & Rubenstein are alleged to have acted as attorneys in this action, and Judiciary Law § 487 “applies to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney” (Oakes v Muka, 56 AD3d 1057, 1058). The allegations of wrongdoing against Feder, RESF, Goldberg, and Herrick Feinstein are equally deficient inasmuch as they fail to allege specific facts from which it could be reasonably inferred that Feder, RESF, Goldberg, and Herrick Feinstein acted with the requisite degree of scienter (see Sammy v Haupel, 170 AD3d 1224, 1225), and/or otherwise fail to allege specific facts from which it could be inferred that the alleged deceit was the proximate cause of any injury to Edward or Anthony (see Parks v Leahey & Johnson, 81 NY2d 161, 164-165; Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 912).

Further, the Supreme Court should have granted dismissal of Edward’s cross claim, counterclaim, and third-party cause of action alleging civil fraud upon the court insofar as asserted against each of the appellants. Even assuming, without deciding, that judicially sanctionable conduct during the course of litigation can give rise to a private cause of action for damages outside of Judiciary Law § 487 (cf. Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178; see generally CDR Créances S.A.S. v Cohen, 23 NY3d 307, 315; ), no such cause of action has been pleaded in this case (see DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 775).”

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.