Plaintiffs hired an attorney in order to purchase a condominium.  Unfortunately, the condo was subject to mold and water damage.  Razdolskaya v Lyubarsky  2018 NY Slip Op 02817
Decided on April 25, 2018  Appellate Division, Second Department starts out with an analysis of why there is a fraud claim.  It ends with an analysis of why the attorney may be subject to legal malpractice and whether he can seek to share the burden with the sellers.

“The plaintiff purchased a condominium unit from the defendants Roman Lyubarsky and Yelena Lyubarsky (hereinafter together the Lyubarskys). The plaintiff was represented by the defendant attorney Zorik Erik Ikhilov in connection with the sale. The plaintiff commenced this action against the Lyubarskys and Ikhilov after allegedly discovering that the condominium building required remediation for mold and water damage. Specifically, the plaintiff alleged that the Lyubarskys actively concealed mold and water damage in the unit’s balcony, and assigned storage unit and parking space, and additionally concealed defective conditions throughout the common areas of the building. The plaintiff alleged Ikhilov committed legal malpractice in his representation of her in the transaction. In his answer, Ikhilov asserted cross claims against the Lyubarskys for contribution and common-law and contractual indemnification.”

“Here, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87-88), the complaint sufficiently states a cause of action to recover damages for fraud on the theory that the Lyubarskys actively concealed defects throughout the common areas of the condominium building. The complaint alleges that the Lyubarskys took several steps to hide the existence of leaks and mold damage including, inter alia, claiming that they had lost the key to the storage area in the cellar which was assigned to the subject condominium, and removing and replacing damaged sheetrock from the cellar and the parking area. These allegations, if true, might have thwarted the plaintiff’s efforts to fulfill her responsibilities imposed by the doctrine of caveat emptor with respect to the common areas of the building (see Camisa v Papaleo, 93 AD3d 623, 625; Margolin v IM Kapco, Inc., 89 AD3d 690, 692; Jablonski v Rapalje, 14 AD3d 484, 487; see also Radushinsky v Itskovich, 127 AD3d at 839). Further, in support of that branch of their motion which sought dismissal pursuant to CPLR 3211(a)(1), the Lyubarskys failed to sustain their burden of submitting documentary evidence to resolve all factual issues as a matter of law, and conclusively dispose of the plaintiff’s fraud cause of action as it related to the common areas of the building (see Leon v Martinez, 84 NY2d at 87; Camisa v Papaleo, 93 AD3d at 625).

We also agree with the Supreme Court’s determination to deny that branch of the Lyubarskys’ motion which was pursuant to CPLR 3211(a)(7) to dismiss Ikhilov’s cross claim for contribution (see Schauer v Joyce, 54 NY2d 1, 5). A claim for contribution may be established, among other ways, where the party from whom contribution is sought owed a duty to the injured plaintiff, and a breach of this duty contributed to the plaintiff’s alleged injury (see Morris v Home Depot USA, 152 AD3d 669, 671-672; Phillips v Young Men’s Christian Assn., 215 AD2d 825, 827). An “essential requirement” for contribution is “that the parties must have contributed to the same injury” (Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 603). “[C]ontribution is available whether or not the culpable parties are allegedly liable for the injury under the same or different theories” (Raquet v Braun, 90 NY2d 177, 183 [internal quotation marks omitted]). Here, the Lyubarskys and Ikhilov are alleged to have caused the same injury to the plaintiff, i.e., the diminution in value of the plaintiff’s condominium unit and her interest in the common elements of the building as a result of the alleged mold and water damage. Under these circumstances, Ikhilov has stated a cause of action against the Lyubarskys to recover damages for contribution (see Schauer v Joyce, 54 NY2d at 5).”

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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.