Malpractice, as delineated from mere negligence, is that of a “professional toward a person for whom a service is rendered.  Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D .2d 624 (I 51 Dept 1999). ”  The statute of limitations for all professionals other than physicians is 3 years.  It’s 2.5 years for physicians.  How to prove that the claimed wrong too place more than three years prior to commencement of the malpractice suit is an art.  Judge Kern, in one of her last Supreme Court cases prior to her elevation to the Appellate Division discusses how to do it in Bose v Think Constr. LLC 2017 NY Slip Op 30944(U) May 4, 2017 Supreme Court, New York County Docket Number: 154628/2015 Judge: Cynthia S. Kern.

“”A defendant who seeks dismissal ofa complaint pursuant to CPLR § 321 l(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden ofproving,primafacie, that the time in which to commence an action has expired.” Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403, 405 (2d Dept 2007). Pursuant to CPLR § 214(6), “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based on contract or tort” must be commenced within three years. Malpractice is the “negligence of a professional toward a person for whom a service is rendered.” Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D .2d 624 (I 51 Dept 1999). It is well-settled that structural engineers are professionals for the purposes ofCPLR § 214(6), see Travelers lndem. Co. v. Zeff Design, 60 A.D.3d 453 (1st Dept 2009), and that “a claim for professional malpractice against an engineer … accrues upon the completion of performance under the contract and the consequent termination of the parties’ professional relationship,” Town of Wawarsing v. Camp, Dresser & McKee, Inc., 49 A.D.3d 1100, 1101-02 (3d Dept 2008). Here, this court finds that the moving defendants’ motion to dismiss plaintiffs’ negligence/malpractice claim is denied on the ground that the moving defendants have failed to establish, primafacie, that such claim is time-barred. In support of their motion, the moving defendants provide the affirmation of their counsel in which he conclusorily affirms that the moving defendants completed their services on the Project by October 2010, before the underpinning work began on the Project. However, such affirmation is insufficient to establish,primafacie, that plaintiffs’ negligence/malpractice claim is time-barred, without some other admissible evidence in support thereof. See Banks v. Auerbach, 56 A.D.2d 819, 819 (!”Dept J 977)(denying defendant’s motion to dismiss on the basis of statute oflimitations on the ground that “[t]he factual basis for defendant’s motion rests entirely on an affirmation of an attorney who [does not have] personal knowledge of the facts …. “) The moving defendants have failed to provide any admissible evidence, such as an affidavit or testimony of someone with personal knowledge, of when the moving defendants actually completed their services on the Project. The moving defendants have provided the affidavit of defendant Pensiero but nowhere in his affidavit does Pensiero affirm that the moving defendants completed their services on a specific date nor does he even discuss the completion of services on the Project. Rather, Pensiero merely affirms that the work performed by the moving defendants was rendered “as outlined in the proposal/contract.” However, an examination of such proposal/contract does not specify a timeframe for completion of the work on the Project. Moreover, plaintiffs provide their affidavit in which they affirm that the moving defendants were still performing their services on the Project as late as August 2012 when they performed a site visit to the Project and prepared a report in accordance with the proposal/contract. “

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
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.