A new luxury condo is built on the Bowery and on a cold night, pipes freeze.  80,000 gallons of water pour through the building, and when workers start to fix the problem, more and more problems are found.  Who is responsible?  The Sponsor ? The contractors?

Board of Mgrs. of 250 Bowery Condominium v 250  VE LLC,  2018 NY Slip Op 31168(U)
June 5, 2018 Supreme Court, New York County Docket Number: 656608/2016 Judge: O. Peter Sherwood discusses privity, professional negligence and the interplay of tort and contract.

“This ·litigation arises from alleged construction defects in the building, which were discovered in 2016 after the water in a fire sprinkler pipe froze, causing the pipe to burst, and water to flood the building (Morris notice of motion, Schreckinger affirmation, exhibit B [Complaint], ¶66). The building is an eight-story structure containing 24 residential units and 2 commercial units
(id.,¶38). While damage from the flooding was being repaired, plaintiff allegedly discovered
defects in the building (id, ¶¶ 70-82). These conditions were purportedly inconsistent with the
representations made by Sponsor Defendants, who marketed the building as a high-end luxury
condominium (id, ¶¶ 26, 29, 49-58). ”

“Morris, ICOR, and Foundations (Builder Defendants) each separately move to dismiss the
negligence and gross negligence claims as against them (motion sequences 001, 002, and 004).
Builder Defendants each argue that the negligence and gross negligence claims are barred by th~
statute of limitations pursuant to CPLR 214, which states that the statute of limitations is three
years for “an action to recover for damages of malpractice, other than medical, dental or podiatric
malpractice, regardless of whether the underlying theory is based on contract or tort” (CPLR 214.
[6]). These defendants contend that the accrual date for a design professional in a professional
malpractice negligence claim is the date of completion of services and, as their services were
completed over three years ago, plaintiffs negligence claims are barred by the statute of
limitations. Plaintiff counters that its negligence claims are not barred because these claims are not
malpractice claims from a direct contract or professional relationship between plaintiff and these
defendants, and, thus, the accrual date is the date that the damage occurred, not the date of
completion of services. ”

“Assuming the truth of the allegations in plaintiffs pleading and “resolv[ing] all inferences
which reasonably flow therefrom in favor of the [plaintiff],” the court agrees with plaintiff that the
negligence claims are not professional malpractice negligence claims (Sanders, 57 NY2d at 394).
There was no direct or other professional relationship between plaintiff and Morris, ICOR, or
Foundations, and plaintiff asserts claims for property damages that it has incurred as a result of the
alleged negligence. Plaintiff discovered the property damage on or after February 15, 2016, when
the fire sprinkler pipe burst. Plaintiff commenced this action on December 19, 2016, thus it is
Morris, ICOR, and Foundations also contend that the negligence and gross negligence
claims should be dismissed as plaintiff lacks privity, or the functional equivalent thereof, with all
three defendants. Plaintiff concedes an absence of privity (Plaintiff Opp. at 9-10, 16). However,
this is not fatal to a negligence claim as, even in the absence of privity, New York law allows the
assertion of a cause of action for negligence resulting in property damage (see 905 5th Assocs.,
Inc. v Weintraub, 85 AD3d 667, 668 [1st Dept 2011] [finding that “the lack of privity does not
affect plaintiffs’ ability to bring a general negligence claim against the [defendant] architect for
property damage sustained by them” where there are “issues of fact as to whether the [defendant]
directed or controlled the work which is alleged to have created the injury”]; Topcuoglu v Hotel
124, LLC, 2013 NY Slip Op 31232(U), *4 [Sup Ct, NY County 2013] [finding that “[a] party who
enters into a contract to perform construction-related services may be liable to third parties for
personal injuries or property damage, despite the lack of privity … “]). Plaintiff asserts that its negligence-based cause of action is largely based on property damage and alleges that the Builder
Defendants had responsibilities related to the construction that could be considered as controlling
the work that caused the injury (Plaintiff Opp. at 19; Complaint ifif 24-32, 110-113). City School
Dist. of City of Newburgh v Hugh Stubbins & Associates, Inc. (85 NY2d 535 1995) can be
distinguished because that plaintiff reviewed and approved specifications and had control during
construction, giving it the functional equivalent of privity. Here, plaintiff alleges that it lacks
privity with Morris, ICOR, and Foundations, but it is not clear whether these defendants reviewed
and approved specifications and had control during construction of the building. ”


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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.