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. “

 

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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.