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Two Lessons From a Legal Malpractice Case

By Andrew Lavoott Bluestone on October 16, 2026
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Karsch v Falcon Rappaport & Berkman PLLC 2026 NY Slip Op 06006 October 15, 2026 Appellate Division, First Department teaches two lessons concerning standing and damages.

“Plaintiffs are the co-executors of the MK Estate, which owned commercial real estate properties through a limited liability company. Supreme Court correctly denied defendants’ motion to dismiss because plaintiffs adequately pleaded their legal malpractice claims, alleging that defendant law firm provided them with incorrect legal advice regarding the tax consequences of potential sales of the commercial real estate properties. The complaint, as supplemented by the affidavit of plaintiff Evan Karsch submitted in opposition to the motion, details the alleged engagement of defendants by plaintiffs, the legal advice and work provided by defendants relating to the estate, and plaintiffs’ sale of the properties based on that advice. These allegations are sufficient at this early stage of the proceeding to establish an attorney-client relationship between plaintiffs and defendant law firm such that the complaint survives a motion to dismiss (see Rushaid v Pictet & Cie, 28 NY3d 316, 327 [2016]; Genesis REOC Co., LLC v Poppel, 205 AD3d 415, 415 [1st Dept 2022]).

Contrary to defendants’ argument, their submission of a formal agreement signed by Evan Karsch engaging defendants to provide the same legal advice and work for the limited liability company that owned the commercial property and that became part of the MK Estate does not conclusively establish that no attorney-client relationship existed between plaintiffs and defendant law firm with respect to tax advice (see Hall v Hobbick, 192 AD3d 776, 778 [2d Dept 2021]).

Furthermore, plaintiffs adequately allege that but for defendants’ deficient tax advice, upon which they reasonably relied, they would have taken another course of action and not have sustained actual and ascertainable damages in the form of undesired tax consequences from the sale of the properties (see 83 Willow, LLC v Apollo, 187 AD3d 563, 563-564 [1st Dept 2020]). To survive the motion to dismiss under CPLR 3211(a)(7), plaintiffs did not have to show that they actually sustained damages, but only that damages attributable to defendants’ conduct might be reasonably inferred from the allegations of legal malpractice (see Fielding v Kupferman, 65 AD3d 437, 442 [1st Dept 2009]).”

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.

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  • Posted in:
    Ethics & Professional Responsibility
  • Blog:
    New York Attorney Malpractice Blog
  • Organization:
    Andrew Lavoott Bluestone
  • Article: View Original Source

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