Schmidt v One N.Y. Plaza Co. LLC 2017 NY Slip Op 06047 Decided on August 8, 2017
Appellate Division, First Department is not a legal malpractice case, but it is a well written decision setting forth how experts battle in a summary judgment case.  Plaintiff slips/falls from a ramp while at work.  His job is to lead a security dog in examining trucks.

“Defendants moved for summary judgment dismissing the complaint, arguing that plaintiff could not establish that his accident took place as the result of any negligence on the part of defendants in the design or maintenance of the service ramp. In support of their motion, defendants submitted an architect’s report from their expert which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard.

In opposition, plaintiff averred that its expert would testify that the service ramp was defective and that the defects were in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and were in violation of the New York City Building Code and industry standards at the time of construction.

The motion court denied defendants’ motion for summary judgment and found that they failed to establish a prima facie entitlement in that defendants’ expert affidavit only addressed the Building Code and Occupational Safety and Health Administration (OSHA) regulations, and failed to address other types of industry-wide standards that might be applicable to determine whether defendants were negligent.

On a motion for summary judgment, the moving party has the initial burden of establishing its entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, [*2]18 NY3d 335, 339 [2011]). Summary judgment should not be granted where there is any doubt as to the existence of triable issues or there are any issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Here, defendants established prima facie entitlement to summary judgment by establishing that the ramp was not designed in a negligent manner and was not in violation of any rules, or standards applicable at the time of construction.

Defendants’ expert report stated that the Building Code applicable to the premises, which was enacted in 1968 (see 1968 Building Code of City of NY [Administrative Code of City of NY] tit 27), was silent concerning the components of a loading dock, delivery truck parking, material loading and unloading, and in regard to an access ramp between the truck parking floor and the top of the loading dock. As a result, the expert concluded, the ramp did not violate the Building Code. The expert also concluded that because the service ramp was not part of the required egress from the loading dock area, those parts of the Building Code applicable to “Means of Egress” did not apply.

Based on his conclusion that the Building Code did not contain sections specifically applicable to the instant facts, defendants’ expert reviewed the standards promulgated by OSHA. He concluded, however, that no section of OSHA applied to the instant facts. He also found that National Fire Protection Agency “Life Safety Code” did not apply to the instant facts. Defendants’ expert opined that the portion of the curb of the ramp where plaintiff was alleged to have tripped was not a foreseeable pedestrian path, since it runs parallel, not across the path of pedestrians walking up and down the ramp. He noted that the use of bright yellow paint to alert pedestrians to the presence of walkway conditions was proper and in compliance with the American Society for Testing and Materials. Overall, defendants’ expert concluded that plaintiff had not cited to any valid authority in support of his contention that the ramp caused the accident, and established that the ramp did not violate any standards referenced by plaintiff’s expert in his expert exchange.

In opposition, plaintiff failed to raise a triable issue of fact as to any negligence on the part of defendants (see Hotaling v City of New York, 55 AD3d 396, 398 [1st Dept 2008], affd 12 NY3d 862 [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.