They’re the same, no?  Well, no.  Malpractice is the negligence of professionals, and simple negligence is the failure to use reasonable means.  However, Judge Mendez does a much better job of explaining in All Craft Fabricators, Inc. v Syska Hennessy Group, Inc.  2015 NY Slip Op 32239(U)  November 23, 2015  Supreme Court, New York County  Docket Number: 155408/2015 , Judge: Manuel J. Mendez.

“Plaintiff All Craft Fabricators, Inc. (herein “All Craft”) was hired by the construction manager – Skanska USA Buildings, Inc. (herein “Skanska”) – to do mill work for the refurbishment (herein “Project”) of the United Nations Headquarters (herein “UNH”), which included work on salvaged wood panels and doors within the offices of the UNH. All Craft shares offices with its affiliate, Donaldson Interiors, Inc. (herein “Donaldson” – collectively known herein as “Plaintiffs”). Plaintiffs claim the doors and panels contained toxic substances, specifically, asbestos, and that no notice of the defective condition was given to them. Plaintiffs allege that during the refurbishment of the doors and panels, due to the asbestos, they were forced to shut down their manufacturing facilities resulting in property damage, business interruption, loss of production, costs to remedy its facility, and costs to dispose of the asbestos. ”

“Plaintiffs claim that Defendant sent crates containing salvaged wood panels and doors from the UNH to perform millwork. The wood panels and doors contained asbestos. Plaintiffs contend that they were not given notice of the defective condition, [* 1] were forced to shut down their manufacturing facility, and incurred damages as a result (see Complaint, PP 12-21 ). The Complaint asserts a cause of action for negligence. Specifically, that Defendant “did not perform its work as a reasonably prudent company would under the circumstances;” did not “comply with applicable laws and regulations;” and that Defendant was “negligent” (see Complaint, PP. 29-31)”

“Defendant claims that this action is time-barred because the crates containing the toxic substance were delivered to Plaintiffs on January 23, 2013, and that Plaintiffs’ claim is for professional negligence and not simple negligence. Defendant argues that the statute of limitations on Plaintiffs’ professional negligence claim accrued on the date of delivery of the crates containing toxic substances and that the three-year statute of limitations period had expired four months prior to Plaintiffs commencing this action. “[M]alpractice in the statutory sense describes the negligence of a professional toward the person for whom he rendered a service, and that an action for malpractice springs from the correlative rights and duties assumed by the parties through the relationship. On the other hand, the wrongful conduct of the professional in rendering services to his client resulting in injury to a party outside the relationship is simple negligence” (Cubito v. Kreisberg, 69 A.D.2d 738, 742, 419 N.Y.S.2d 578, 580 [2″d Dept., 1979)). “A latent injury occurs at the time of exposure: the reason that the injury is latent is that the injury is concealed, and not visible or otherwise apparent (see Giordano v. Market Am., Inc., 15 N.Y.3d 590, 598, 915 N.Y.S.2d 884, 941 N.E.2d 727 (2010)), and the property damage results from the seepage or infiltration of a toxic foreign substance over time” (Suffolk County Water Authority v. Dow Chemical Co., 121 A.D.3d 509, 91 N.Y.S.2d 613, 620 [2″d Dept., 2014)). Plaintiffs were not in privity with Defendant. This action is based on simple negligence and CPLR 214-c applies here because the toxic condition of the doors and wood panels were a latent defect. The statute of limitations on Plaintiffs’ simple negligence accrued on June 7, 2012 when the Plaintiffs’ employees first opened the crates and sustained injuries. This action is timely. “

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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 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.