Sexual misconduct in the educational and more especially the school sport arena has become omnipresent.  In Mulligan v Long Is. Fury Volleyball Club  2018 NY Slip Op 28132
Decided on May 1, 2018  Supreme Court, Suffolk County  Santorelli, J. we see the effects of decisions by sport officials in handling reports of sexual misconduct between the students and the coaches.

“The plaintiff claims that between January 2013 and April 2013 she had a sexual relationship with defendant Concepcion. Two of the dates on which the plaintiff claims they had sexual relations were during volleyball tournaments set up by defendant LIFVC where plaintiff and defendant Concepcion stayed with the volleyball team at hotels. The plaintiff was seeing defendant Brenner for therapy for several years before these incidents. The plaintiff alleges that sometime in early February 2013 she advised defendant Brenner that she was having a sexual relationship with defendant Concepcion, who was her assistant coach at the time for her travel volleyball team with LIFVC. The plaintiff claims that after she discussed the sexual relationship with defendant Brenner, Brenner encouraged her to tell her parents or that she would advise them of the relationship. The plaintiff advised her parents of the sexual relationship in April 2013. Defendant Concepcion was arrested in April 2013 based upon the underlying [*2]allegations contained in this complaint and pled guilty on April 4, 2014 to Endangering the Welfare of a Child. He was sentenced on July 11, 2014. The plaintiff’s birthday is in early February 1996. Defendant Brenner claims that at the time that the plaintiff advised her of the relationship with Concepcion she was already seventeen years old and had reached the age of consent for sexual activity.”

“Defendant LIFVC claims that the plaintiff remained in the physical custody and control of her parents during the volleyball tournaments where defendant Concepcion had sexual relations with the plaintiff and therefore it did not owe a duty to her. LIFVC claims that the plaintiff’s parent or parents went to all away tournaments, specifically the two where the plaintiff claims sexual encounters occurred and therefore plaintiff remained in her parents care and custody. In addition, LIFVC argues that the negligent infliction of emotional distress cause of action is duplicative of the breach of fiduciary duty cause of action and must be dismissed. In opposition, [*5]the plaintiff claims that she was separated from her parents and placed in rooms that were under the custody and control of LIFVC and its coaches. The plaintiff further alleges that her parents were in the same town for the tournaments but did not stay in the same hotels as the team. The plaintiff argues that the negligent infliction of emotional distress cause of action is not duplicative of the breach of fiduciary duty cause of action because it also encompasses the treatment of the plaintiff after the sexual contact with defendant Concepcion.

The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has pled a cause of action for breach of fiduciary duty cognizable at law as against defendant LIFVC. However, the cause of action for negligent infliction of emotional distress is “essentially duplicative” of the breach of fiduciary duty cause of action and therefore cannot be asserted against defendant LIFVC. Therefore defendant LIFVC’s motion to dismiss is granted as to the negligent infliction of emotional distress cause of action and is otherwise denied.”

“Defendant Brenner acknowledges that she is a mandatory reporter under Soc Serv § 413 but argues that she did not have to report the sexual conduct that the plaintiff admitted to engaging in with defendant Concepcion. Brenner claims that the plaintiff advised her of the sexual contact in February 2013, when she was seventeen years old, after she had already attained the age of consent. Brenner also claims that it was not a mandatory reporting situation because defendant Concepcion was not a person legally responsible for the plaintiff. Defendant Brenner also states that she advised and convinced the plaintiff to report the sexual conduct to her mother, which the plaintiff did in April 2013. In opposition the plaintiff claims that she was under the care of defendant Brenner since she was in ninth grade and that she “disclosed to Defendant Brenner that she was being raped and sexually abused by Defendant Concepcion in January or February of 2013.”

The Court concludes that, accepting as true the factual averments of the complaint and granting plaintiff every favorable inference which may be drawn from the pleading, the plaintiff has not pled a cause of action for breach of fiduciary duty, negligent infliction of emotional distress or professional malpractice as against defendant Brenner. Brenner has shown that the plaintiff attained the age of consent before she advised Brenner of the sexual relationship she had with Defendant Concepcion. In addition, since defendant Concepcion was not a legally responsible person under the Family Court Act for plaintiff, defendant Brenner did not have a duty to report the relationship at that time. Therefore defendant Brenner’s motion to dismiss is granted and the complaint is dismissed as to defendant Brenner.”

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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.