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Bluestone Menu Current Page: HomeServices Contact Us Search Close Enter Search Terms Search New York Attorney Malpractice Blog Plaintiff Succeeded On Three Claims and Still Sued for Legal Malpractice By Andrew Lavoott Bluestone on May 15, 2024 Posted in Uncategorized Gopstein v Bellinson Law, LLC 2024 NY Slip Op 02592 Decided on May 09, 2024 Appellate Division, First Department is the curious case of a successful attorney-pro-se plaintiff who settled three claims in a row and then went on to sue the attorney who settled all three claims. In this legal malpractice action, plaintiff, an attorney acting pro se, alleges that defendants Bellinson Law, LLC, and Robert J. Bellinson (together Bellinson) negligently advised plaintiff to settle a legal malpractice action he commenced against his former attorney, Steven J. Pepperman. Pepperman initially represented plaintiff in a personal injury action. Unhappy with the results of a summary judgment motion, plaintiff replaced Pepperman with Bellinson in the personal injury action. Bellinson settled the personal injury action on plaintiff’s behalf. Afterward, plaintiff sued Pepperman for legal malpractice. Bellinson subsequently settled both the Pepperman legal malpractice action and Pepperman’s claim for legal fees in the personal injury action. The court properly dismissed plaintiff’s claim pursuant to CPLR 3211(a)(7) because he failed to state a cause of action ( Leon v Martinez , 84 NY2d 83, 87 [1994]). In order to survive a motion to dismiss, a plaintiff’s complaint in an action for legal malpractice must show that but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages” ( Pellegrino v File , 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Moreover, speculative or conclusory damages cannot be the basis of a malpractice claim ( see id. ). Here, plaintiff’s allegation that Bellinson’s advice denied him the full value of his malpractice suit against Pepperman was purely conclusory” ( Murray Hill Invs. v Parker Chapin Flattau & Klimpl, LLP , 305 AD2d 228, 229 [1st Dept 2003]). Plaintiff’s complaint lacked any factual allegations to support his conclusion that he would have succeeded” in achieving a better result in the personal injury action but for Pepperman’s negligence, and that he would have proved legal malpractice against Pepperman but for defendants’ advice ( Pellegrino , 291 AD2d at 63). Additionally, plaintiff’s damages were speculative as he provided no basis for his calculations ( see id. ; Zarin v Reid & Priest , 184 AD2d 385, 387-388 [1st Dept 1992]).” Email this post Tweet this post Like this post Share this post on LinkedIn Half a Loaf and No Legal Malpractice By Andrew Lavoott Bluestone on May 13, 2024 Posted in Uncategorized Salamone v Deily & Glastetter, LLP 2024 NY Slip Op 31569(U) May 3, 2024 Supreme Court, New York County Docket Number: Index No. 160104/2022 Judge: Shlomo S. Hagler is a complicated legal malpractice case arising from a $2 Million dollar demand note, sale of Apple stock, questions of usury and a few appellate decisions. In sum, Plaintiff got his loan back, failed to get a bonus on the loan and was determined not to have a good legal malpractice claim. Plaintiff engaged defendants to provide counseling, advice and drafting services in connection with a loan and subsequent forbearance agreement entered into between plaintiff and non-parties EIP Global Fund LLC (EIP”) and Sridhar Chityala (Sridhar”) (the Non-Party Borrowers”). On or about October 10, 2019, non-party Sridhar approached plaintiff and requested a 30-day loan of $5 million dollars (NYSCEF Doc. No. 1 [complaint],, 11). 1 After negotiations, plaintiff agreed to loan non-party Sridhar and his company EIP, $2 million by liquidating a portion of his stock in Apple, Inc. (Apple”) (id.). Plaintiff engaged defendants to provide professional services in connection with said loan and asked defendants to draft a loan in the form of a Demand Note. The Demand Note provided that the Non-Party Borrowers would pay plaintiff the $2 million on demand or within thirty days, in addition to interest at a rate of ten percent per annum (id., ,r, 17-18). The Demand Note was executed on October 11, 2019 and plaintiff wired the funds to the Non-Party Borrowers on that day (id.,, 18). The Non-Party Borrowers failed to pay back the Demand Note within the required thirty days (id.,, 19). After numerous discussions between plaintiff and the Non-Party Borrowers, plaintiff agreed to not immediately file suit to collect on the loan and to provide the Non-Party Borrowers with additional time to repay the Demand Note (id., ,r 20). In connection therewith, plaintiff extended the deadline to repay the loan to December 17, 2019. The Non-Party Borrowers also agreed to pay [p ]laintiff an additional $300,000 to compensate him [plaintiff] for the lost opportunity damages as a result of not being able to repurchase the Apple stock [plaintiff] liquidated to fund the 30-day loan” (id). Defendants counseled plaintiff to execute a forbearance agreement which included an increased interest rate of twenty per cent per annum, and the $300,000 which was referred to in the agreement as a Forbearance Fee (id., ,r 23).2 Despite due demand, and repeated promises and assurances,” the Non-Party Borrowers failed to pay plaintiff the amounts due and owing by the extended deadline (id., , 26). As a result, plaintiff commenced an action on January 16, 2020 against the Non-Party Borrowers under Index Number 6503 7 4/2020 asserting six causes of action (Borrower Litigation”) (id., ,27). On February 18, 2020, the Non-Party Borrowers filed a pre-answer motion to dismiss in the Borrower Litigation on grounds, inter alia that the Forbearance Fee was usurious rendering the Forbearance Agreement void (id,~ 28)”” Giving plaintiff the benefit of every possible favorable inference, the complaint fails to state a cause of action for legal malpractice. To begin, an attorney is obligated to know the law relating to the matter for which he/she is representing a client and it is the attorney’s duty, if he has not knowledge of the statutes, to inform himself, for, like any artisan, by undertaking the work, he represents that he is capable of performing it in a skillful manner” (Fielding v Kupferman, 65 AD3d 437,440 [1st Dept 2009] [internal quotation marks and citations omitted]). Here, plaintiff complains that defendants failed to exercise the ordinary, reasonable skill and knowledge commonly possessed by a member of the legal community by drafting a facially usurious Forbearance Agreement (NYSCEF Doc No. 1 [complaint],~ 39). Plaintiff alleges further that but for” defendants’ deficient drafting of said agreement, plaintiff would have immediately pursued his rights under the Demand Note and in addition would have separately documented an agreement to compensate him for his lost opportunity to immediately repurchase Apple stock. Plaintiff argues that the part of the Forbearance Agreement that provided for a Forbearance Fee was intended to provide such reimbursement.” With respect to plaintiffs allegation of damages, the complaint alleges that he sustained damages because he (i) would have enforced his rights under the Demand Note; (ii) would have separately documented an agreement to compensate plaintiff for his lost opportunity, (iii) and incurred legal fees in minimizing the damage caused by the usurious Forbearance Agreement (NYSCEF Doc. No. 1 [complaint], ,r 40). As to damages incurred on collecting on the Demand Note, plaintiff suffered no damages. On November 9, 2020, Justice Sherwood entered a Judgment in plaintiffs favor in the amount of $2,262,702.44 representing the total amount of the principal the Non-Party Borrowers owed to plaintiff under the Demand Note ($2 million), plus interest and attorneys’ fees and costs (NYSCEF Doc. No. 8). In addition, a Satisfaction of Judgment was filed on February...