Court appoints a jewelry appraiser as a neutral, and the neutral then send retainer agreements to the parties.  Only one party signs the retainer agreement.  Appraiser then renders report which one party disputes.  Can there be a professional negligence claim?

Lintz v Aretz  2018 NY Slip Op 30455(U)  March 12, 2018  Supreme Court, New York County
Docket Number: 651766/2015  Judge: Barbara Jaffe says “no.”

“A party asserting a claim for professional malpractice or negligence must establish the
existence of a contractual .relationship or a bond between it and the professional that is the
functional equivalent of contractual privity. (Bullmore v Ernst & Young Cayman Is., 45 AD3d
461 [1st Dept 2007]). A relationship that constitutes the functional equivalent of contractual privity is one where there is: (1) awareness that information will be used for a particular purpose;
(2) reliance by a party in furtherance of that purpose; and (3) some conduct by the other party
linking them to the party and indicating their understanding of their reliance. (Ossining Union
Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417 [ 1989]).
Moreover, to the extent that a claim for negligent appraisal may be deemed one for
negligent misrepresentation, the party asserting the negligence must establish both reliance and
the existence of a special relationship between it and other party. (See e.g., Ravenna v Christie’s
Inc., 289 AD2d 15 [1st Dept 2001] [where plaintiff brought negligent misrepresentation claim
based on allegation that art specialist gave him wrong information about artwork’s origin,
causing damage, claim dismissed as no special relationship existed between them,
notwithstanding specialist’s awareness that plaintiff would rely on advice]).
Having inconsistently alleged that Aretz was both court-appointed and improperly
retained only by her husband and that only her husband was Aretz’s client, plaintiff thereby
demonstrates: 1) that there was no contractual relationship or its functional equivalent between
her and Aretz; and 2) that neither she nor her husband had either a special relationship or one ·
constituting the functional equivalent of privity with Aretz, as Aretz’s duty was to the court
rather than to either litigant. While she alleges that defendants failed to provide her with the
retainer agreement, thereby thwarting her from signing it and establishing a special relationship,
defendants prove that a copy of the agreement was faxed both to her and to her divorce attorney.
Thus, plaintiffs mere denial of receipt raises no triable issue of fact as to whether there was or
should have been a contractual relationship between her and defendants. To the extent she now
disputes the appointment, she does so in a fatally conclusory fashion, and fails to explain the
contrary allegation in her complaint.

There is also no evidence that plaintiff was unable to hire her own appraiser or that,
having received Aretz’s appraisal before the trial, she could not verify it before it was offered at
trial. And, while plaintiff alleges that Aretz’s retainer agreement with her husband violated his
ethical or expert duty to act as a neutral evaluator, that fact alone is insufficient to hold him
liable. (See e.g., Cohen v Kachroo, 115 AD3d 512 [l51 Dept 2014] [violation of rules of
professional conduct or ethical rules, in and of itself, does not constitute malpractice]).”

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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.