The development of an apartment building in Manhattan is a mega-big thing.  Not only does it cost a lot, but there are a large number of difficult rules. W 106 Dev. LLC v Pilla  2018 NY Slip Op 32596(U)  October 10, 2018  Supreme Court, New York County  Docket Number: 654801/2016
Judge: Debra A. James  makes it clear that even pros can make mistakes.  However, there remains a difference in whether the wrong is addressed through tort or contract analysis.

“Plaintiff W 108 Development LLC (West 108), a real estate development corporation, is the owner of a building complex (the property} located at 324-326 West 108th Street in the County,
City and State of New York. In this .action, plaintiff alleges that defendants did not
carry out its obligations to develop the· property during the West 108 project.  In its complaint, West 108 first states that, on February 25,201s, it “engaged defendants, as architect . , to complete five separate phases of architectural work” as part of its development project. These comprised: 1) pre-design; 2) schematic design; 3) design development; 4) construction document; and 5} construction administration. Defendants note that there was never a formally executed’ contract.”

“West 108’S second cause of action asserts a claim of “professional malpractice” against both defendants. New York law treats architectural malpractice as a species of “‘professional negligence [which] requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.'” 143 Bergen St., LLC v Ruderman, 144 AD3d 1002, 1003 (2d Dept 2016), quoting Kung v Zheng, 73 AD3d 862, 863 (2d Dept 2010). Here~ the
complaint alleges that defendants committed four negligent departures from architectural standards, including misunderstanding and misapplication of: 1) the “Sliver Law” (New
York City Zoning Resolution§ 23-692); 2) the portion of the Zoning Resolution that governs parking in this neighborhood where the property is situated; 3) the Americans with Disabilities Act and 4) the portion of the New York City Building Code that governs egress requirements for renovated buildings. The complaint also alleges that these departures were the proximate cause of the financial injuries that West 108 consequently suffered. Id. As a result, the ‘court finds that the complaint
satisfies the legal pleading requirements for this cause of action. Defendants, nevertheless, raise two arguments for its dismissal. ”

” Defendants next argue that West 108’ s architectural malpractice claim should be dismissed against.both defendants because the claim is duplicative of West 108’s breach of contract claim. They cite the general rule, promulgated long ago by the Court of Appeals in Clark-Fitzpatrick, Inc. v Long Is. R.R. Co. (70 NY2d 382, 389 [1987]), that “a simple breach of contract is not ‘to be considered a tort unless a legal duty independent of the contract itself has been violated.” West 108
responds by citing the portion of CPLR 3014, which provide that “(c]auses of action or defenses may be stated alternatively or hypothetically,” and arguing that New York courts routinely interpret the statute as permitting an exception, at the pleading stage of litigation, to the general rule that tort based claims should be dismissed when they are duplicitive of the breach of contract claims. West 108’s statement of the law is correct. See .e.g. Citi Mgt. Group, Ltd. v Higbridge House
Ogden, LLC, 45 AD3d 487, 487 (1st Dept.2007). Furthermore, the instant complaint does contain t,he allegation that defendants committed professional malpractice, which certainly constitutes
the violation of a duty separate from a contractual obligation. ”

” However, a review of the complaint shows that as to such tort claim plaintiff seeks “only a benefit of the bargain recovery, viz, economic loss under the contract”, 17. Vista Fee Associates v Teachers Ins.  and Annuity Ass’ n of America, (259 AD2d 75, 83 [1st Dept. 1999]) as opposed to damages for personal injury or property loss. Therefore, the court accepts defendants’ second dismissal argument, and finds that their motion should be granted with respect to West 108’s
architectural malpractice claim.”

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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.