New, or unique causes of action rarely arise.  In Alrose Steinway, LLC v Jaspan Schlesinger, LLP 2017 NY Slip Op 32082(U) September 29, 2017  Supreme Court, New York County Docket Number: 151482/2017 we see a claim that failure to supervise a vastly experienced partner in an LLP  is negligence.  Supreme Court permits discovery on the issue, finding that it is both “interesting” and “unique.”

“In the complaint, p’laintiff alleges that on February 1, 2014, it entered a 10-year ground lease covering two properties in Astoria, Queens (the Premises). The lease contained an option to purchase the Premises for $11 million after February 1, 2023 (the Option), as well as a right of first refusal to match any third-party offer to purchase the Premises during the term of the lease (the ROFR). Any interim purchaser would purchase the Premises subject to the Option. On January 6, 2016, Allen Rosenberg, plaintiff’s principal, executed an amendment to the lease which voided the Option if plaintiff’s landlord sold the Premises to a third-party (the Amendment). Specifically, the Amendment states, “[t]enant’s option to purchase during the final lease year under Article XXX shall be void.” Plaintiff alleges that defendant Stephen P. Epstein, Esq., a real estate partner at defendant Jaspan Schlesinger, LLP, advised Mr. Rosenberg to sign the Amendment and told Mr. Rosenberg that the Amendment was for “housekeeping” purposes. In an November 17, 2015 email, Mr. Epstein writes, “[t]he attached shows the changes requested by [landlord]. The lease that was actually signed was the last version and I believe that is what we agreed to. However, this may be necessary for ‘shalom bayit.”‘ Plaintiff alleges that it relied on Mr. Epstein’s advice and, on January 6, 2016, executed the Amendment without reading it. On August 6, 2016, plaintiff exercised its ROFR and entered into a contract to purchase the Premises for $14.5 million. The purchase closed on November 1, 2016. Plaintiff opines that the Premises were worth $25 million on the date of the malpractice based on an unsolicited offer it received within months of the Amendment to purchase one of the two buildings for $11 million and its sale of the other building for $12.5 million, just one month after the November 2016 closing. ”

“In addition to malpractice, plaintiff asserts an interesting claim of failure to supervise in its third cause of action against defendants Jaspan Schlesinger LLP and Steven Schlesinger, the managing partner of the firm. There is no vicarious liability for a general partner in an LLP. New York Partnership Law§ 26 (b). Although plaintiff argues that Mr. Schlesinger is liable under New York Partnership Law§ 26 (c) (i), which provides that “each partner … shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him or her or by any person under his or her direct supervision and control while rendering professional services on behalf of such registered limited liability partnership,” it is undisputed that Mr. Schlesinger never communicated with plaintiff nor supervised Mr. Epstein, another partner. Thus, this causes of action against Mr. Schlesinger are dismissed. Plaintiff also advances the argument that the absence of any supervisory structure of partners at the firm is malpractice under Partnership Law§ 26 (c) (i). It argues that the law firm, as a whole, has an obligation to make reasonable efforts to ensure that its partners are appropriately supervised. Under this theory, Mr. Epstein’s status as a partner and 39 years of experience is irrelevant. At this early stage, plaintiff may explore this unique theory against the firm alone. “