ALBANY      The Court of Appeals addressed professional malpractice and duplicity.  Here we are discussing duplicitive causes of action, not deceit in the meaning of Judiciary Law § 487.

“The two questions on this appeal are whether plaintiff City of New York is an intended third-party beneficiary of the architectural services contract between plaintiff Dormitory Authority of the State of New York (DASNY) and defendant Perkins Eastman Architects, P.C. and whether DASNY’s negligence claim against Perkins is duplicative of its breach of contract claim. We hold that summary judgment should have been granted in defendant Perkins’ favor on both issues.

This action arose out of a construction project to build a forensic biology laboratory at 26th Street and First Avenue in Manhattan, adjacent to Bellevue Hospital, for use by the Office of the Chief Medical Examiner (OCME). The City (on behalf of OCME) and DASNY entered into a project management agreement, which provided that DASNY would finance and manage the design and construction of the laboratory (the project). DASNY was authorized to enter into contracts with the necessary contractors and consultants including, as relevant here, the architect, Perkins.

Pursuant to the contract between DASNY and Perkins (the Perkins contract), Perkins was to provide design, architectural, and engineering services for the project and supervise its construction. Perkins was also responsible for providing a site plan for the location of the laboratory in relation to the hospital. The contract further provides that Perkins would “indemnify and hold harmless” DASNY and the “Client” (that {**30 NY3d at 708}is, OCME, and the NYC Police and Fire Departments) from any claims arising out of Perkins’ negligent acts or omissions and that extra costs or [*2]expenses incurred by DASNY and the Client as a result of Perkins’ ”design errors or omissions shall be recoverable from [Perkins] and/or its Professional Liability Insurance carrier.”

Pursuant to a separate contract, DASNY retained Samson Construction Co., which is not a party to this appeal, as the contractor to provide excavation and foundation work for the project. Significantly, the contract executed between DASNY and Samson provides that the client—i.e., the City—”is an intended third party beneficiary of the Contract for the purposes of recovering any damages caused by [Samson].” Although there are passing references to the client in the Perkins contract, no analogous language providing that the City is an intended third-party beneficiary appears there.”

“The allegations set forth in the negligence cause of action are virtually identical in every respect, but with an introductory phrase that references Perkins’ failure “to comply with professional standards of care” instead of breach of contract. The damages for both claims are described as the “significant additional expenses” necessary to complete the project. Although the complaint’s ad damnum clause states a figure for Perkins’ negligence that is $4 million higher than for its breach of contract, there is no basis given for the additional amount. During early discovery, plaintiffs produced a binder and provided testimony showing that the total cost of fixing the damage was approximately $37 million, including repairs to the project site and the adjacent structures, with no distinction drawn between the two claims.

Perkins moved for summary judgment to dismiss the City’s breach of contract and negligence claims and to dismiss DASNY’s negligence claim as duplicative of its breach of contract claim. Supreme Court granted the motion in part, dismissing the City’s breach of contract and negligence claims (2013 NY Slip Op 34183[U] [2013]). The court held that the City was not an intended third-party beneficiary of the Perkins contract and that the City’s claim for simple negligence was therefore time-barred. The court allowed both of DASNY’s claims to proceed, finding that its negligence claim was not duplicative of its contract claim.

The Appellate Division modified by denying Perkins’ motion for summary judgment on the City’s breach of contract claim and, as so modified, affirmed (137 AD3d 433 [1st Dept 2016]). The Court held that the City had raised an issue of fact whether it was an intended third-party beneficiary of the parties’ contract. The Court also denied Perkins’ motion for summary judgment to dismiss DASNY’s negligence claim as duplicative of its breach of contract claim. The Court held there was an issue of fact whether Perkins assumed a duty of care to perform in accordance with professional standards that was independent of its contractual obligations.

[*3]One Justice dissented in part, and would have dismissed DASNY’s negligence claim as duplicative. The Appellate Division granted Perkins’ motion for leave to appeal to this Court,{**30 NY3d at 710} certifying the following question: “Was the order of this Court, which modified the order of the Supreme Court, properly made?” We answer the certified question in the negative.”

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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.