In Sutton Animal Hosp. PLLC v D&D Dev., Inc.  2018 NY Slip Op 32425(U)  September 24, 2018  Supreme Court, New York County  Docket Number: 652781/2016  Judge Debra A. James discusses the difference between negligence of a professional to one in privity and to one only in quasi-privity.  The difference is enormous.

“Moving defendants are correct that “‘recovery will not be granted to a third person for pecuniary  loss arising from the negligent representations of a professional with whom he or she has no contractual relationship'” (Key International Manufacturing, Inc. v Morse/Diesel, Inc., 142 AD2d  448, 452 [2d Dept. 19 88] ) . ”

“The first and sixth causes of action (captioned “counts”) of the first amended complaint are entitled  Professional Malpractice” and allege, inter alia, that the architects/engineers:
“failed to meet the standard of care required of all
professional architects/engineers”, “misrepresent[ed] …
architectural/engineering skills”; “fail[ed] to comply with
and uphold professional standards”; “required to exercise.
the ordinary and reasonable skill and knowledge required of
all individuals license[sic] to engage in work as a
professional architect/engineer”; “was bound to exercise
reasonable care in designing and supervising the work it
was contracted to perform”‘ “professional negligence in its
preparation of Construction Plans”; “fail[ed] to exercise
the required care, diligence, skill and learning required
of all professional architects/engineers”.

As plaintiff seeks pecuniary loss only for such deviations from professional standards and does not allege any injury to real or personal property, such allegations state no cognizable claim against the moving defendants.

However, the complaint also alleges that the architect defendants “produced drawings” that were not code compliant and that the engineer defendant incorporated defective mechanical
plans in the Construction Project plans. In addition, the opposing affidavit of plaintiff’s expert states that the architects and engineers misrepresented that they were the Special Inspection Agency on their submissions to the New York City Department of Buildings. Such allegations sound in negligent misrepresentation and are analogous to the inaccurate findings that the Court of Appeals found to be actionable in Ossining Union Free School Dist. v Anderson LaRocca Anderson,
(73 NY2d 417 [1989]). Plaintiff shall be granted leave to amend its pleadings to specify the misrepresentation(s) that were the subject of the drawings and/or mechanical plans that were
transmitted to it, and upon which it reasonably relied to its detriment in the construction of its veterinary hospital.”

“The first amended complaint and opposing affidavit clearly set forth that plaintiff had a relationship with each of them that was the “functional equivalent of contractual privity” as defined in Ossining Union, as such claims meet the three-fold criteria for potential liability of the moving defendants articulated in Ossining Union, to wit, that ” ( 1) [defendants possessed] awareness that the [drawing/plans] were to be used for a particular purpose; (2) [that there was] reliance by a known party or parties in furtherance of that purpose; ·and that there was (3) some conduct
by the defendants linking them to the party or parties and evincing defendants’ understanding of their reliance” (73 NY2d at425). “

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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 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.