After a long hibernation period, Grace v. Law is now appearing more frequently in legal malpractice cases, mostly as a defense to statute of limitations arguments.  Kreutzberg v Law Offs. of John Riconda, P.C.  2022 NY Slip Op 06475  Decided on November 16, 2022  Appellate Division, Second Department is one example.  Not raised in Supreme Court, the argument that the legal malpractice case could not be brought was impermissible for the first time on appeal.

“On May 26, 2020, the plaintiff commenced the instant action to recover damages for legal malpractice, alleging that the defendants failed to first obtain the consent of the plaintiff’s workers’ compensation carrier, as required pursuant to Workers’ Compensation Law § 29(5), with regard to a settlement of a no-fault claim and personal injury action on July 2, 2009. The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. The Supreme Court granted that branch of the defendants’ motion. The plaintiff appeals.”

“The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214[6]; Tulino v Hiller, P.C., 202 AD3d at 1135), which accrues at the time the malpractice is committed, not when the client discovers it (see Shumsky v Eisenstein, 96 NY2d 164, 166; Goodman v Weiss, Zarett, Brofman, Sonneklar & Levy, P.C., 199 AD3d 659, 661; Sclafani v Kahn, 169 AD3d 846, 848).

Here, the plaintiff’s cause of action accrued on July 2, 2009, when the no-fault claim [*2]and personal injury action were settled without first obtaining the consent of the plaintiff’s workers’ compensation carrier to the settlement, as required pursuant to Workers’ Compensation Law § 29(5) (see Amodeo v Kolodny, P.C., 35 AD3d 773, 774). Thus, the defendants established, prima facie, that the time in which to commence the instant action has expired. In opposition, the plaintiff failed to raise a question of fact.

The plaintiff’s contentions regarding Grace v Law (24 NY3d 203), and the doctrine of continuous representation were not advanced before the Supreme Court in opposition to that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. Thus, these contentions are improperly raised for the first time on appeal and are not properly before this Court (see Matter of Ray v County of Suffolk, 204 AD3d 807Martinez v City of New York, 175 AD3d 1284, 1285).”

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.