Chapman Steamer Collective LLC v Jones    2017 NY Slip Op 30722(U)  April 13, 2017
Supreme Court, Kings County  Docket Number: 501809/16  Judge: Ellen M. Spodek asks the question of what happens when an attorney takes on a very difficult case, offers the only (weak) defense and loses the case.  Was the effort without any merit?

“In August 2007, Wang purchased real property located at 179 Dubois Street, in Newburgh, New York (the property). In September 2008, Wang transferred the property to Chapman, a limited liability company formed by her in order to purchase and renovate the property, which was an old firehouse. Wang was the sole member of Chapman. Wang planned a mixed use for the property and sought financing for this construction project through Keybank National Association (Keybank). In 2008, Chapman applied for a long-term construction loan in the sum of$700,000 with _Keybank (the permanent construction loan), which was to be a community development loan involving the potential grant of tax credits. In order to finance interim construction while waiting for the application process for the permanent construction Joan to be completed, plaintiffs sought a line of credit bridge Joan from Keybank. On October 14, 2008, Chapman signed a loan agreement, a note, and a mortgage on the property securing the note for a line of credit loan from Keybank in the sum of$221,000 (the bridge loan), which was personally guaranteed by Wang pursuant to a written guaranty executed by her. The loan documents provided that the bridge loan wrui for a 12-month term at the interest rate of the prime rate plus one percent, and the unpaid principal and interest was required to be paid in full by November 1, 2009. In addition, paragraph 25 of the mortgage bridge loan and the guaranty provided that plaintiffs waived the right to interpose any defense, setoff or counterclaim whatsoever to any action brought by Keybank to enforce its rights under such mortgage and guaranty. Chapman drew the entire $221,000 line of credit from the bridge loan. ”

“When the bridge loan became due on November 1, 2009 pursuant to the tenns of the I note antl mortgage, Chapman defaulted on the note and Wang defaulted on the guaranty. Consequently, on August 3, 2010, Keybank commenced an action in the Supreme Court, Orange County (the foreclosure action), to foreclose the mortgage and to recover on the guaranty to the extent of holding Wang liable for any deficiency remaining after the foreclosure sale. Keybank filed a summons, complaint, and a notice of pendency in the foreclosure action. Plaintiffs then retained defendant to.represent them with respect to defending them in the foreclosure action.”

“Defendant interposed an answer, on behalf of plaintiffs, in the foreclosure action, dated October 15, 2010, asserting 13 affirmative defenses and a counterclaim. The seventh . affirmative defense alleged that although Chapman had complied with all of Keybank’s lending requirements, it failed to proceed to closing on the permanent construction loan. The ninth affirmative defense alleged that Keybank was barred from proceeding with the foreclosure action because it promised and enticed plaintiffs to accept the note and mortgage of the bridge loan with the express promise that it would write a construction loan for the benefit of Chapman to fund the final phase of construction. The counterclaim asserted that Keybank was negligent in failing to close the permanent construction loan and sought to recover damages, alleging, ainong other things, that Keybank, as part of a series of predatory lending practices, induced plaintiffs into mortgaging the property pursuant to the bridge loan based on unfulfilled promises of access to further development funding, i.e., the permanent construction loan. ”

“Plaintiffs’ theory of recovery for legal malpractice is predicated on their allegations that there was no defense to Keybank’s complaint in the foreclosure action due to the waiver of defenses and counterclaims contained in paragraph 25 of the bridge loan mortgage. Plaintiffs contend that there was absolutely no defense to the foreclosure action that could have been claimed at the time that defendant filed the answer on their behalf. ”

“Plaintiffs’ argument and Berlandi’s opinion are rejected. Plaintiffs sought representation from defendant in ·the foreclosure action, and he interposed the only cognizable defense to the foreclosure action available to plaintiffs by interposing a counterclaim and defenses sounding in fraudulent inducement. In these defenses and counterclaim, defendant alleged that Keybank fraudulently induced plaintiffs to enter into the bridge loan based on the unfulfilled promise to provide additional permanent financing pursuant to the contemplated permanent construction loan. Defendant’s attempt to defend plaintiffs in this manner was not an unreasonable course of action, but a strategic decision to pursue the only available defense. The fact that plaintiffs’ counterclaim and defenses of fraud were unsuccessful, despite defendant’s efforts, is not a ground for a claim of legal malpractice. Plaintiffs’ present dissatisfaction with defendant’s strategic choice does not support a legal malpractice claim as a matter o flaw (see Tantleff v Kestenbaum & Mark, 131 AD3d 955, 958 [2d Dept 2015], Iv denied 27 NY3d 906 [2016]). “[A]n attorney is not a guarantor of a particular result … and may not be held liable in negligence for … the exercise of appropriate judgment that leads to an unsuccessful result” (Bua, 99 AD3d at 846- 84 7 [internal quotation marks and citation omitted]; see also Rubinbergv Walker, 252 AD2d 466, 467 [1st Dept 1998])  “

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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…

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.