Yesterday, we discussed privity in a real estate setting in 71 Park Ave. S., LLC v Fox Rothschild LLP  2018 NY Slip Op 32451(U)  October 1, 2018  Supreme Court, New York County  Docket Number: 158900/2017.  Judge Saliann Scarpulla determined that one of the two plaintiffs lacked privity because it was formed after the representation was commenced, and the retainer agreement specifically ruled out representation of any related entities.  While the second plaintiff in the action has a well pled claim against the law firm, today we discuss the concept of “near privity.”  This comes up frequently in opinion letter settings where non-clients might seek to rely upon an opinion letter.

“Plaintiffs also argue that their malpractice claim should be sustained because they plead facts sufficient to establish a relationship approaching near privity. To sustain a claim for legal malpractice based on near privity, a plaintiff must allege that the professional was “aware that its services will be used for a specific purpose, the plaintiff must rely upon those services, and the professional must engage in some conduct evincing some understanding of the plaintiffs reliance.” Allianz Underwriters Ins. Co. v. Landmark Ins. Co., 13 A.D.3d 172, 175 (1st Dept 2004). Here, Plaintiffs fail to allege sufficient facts to show near privity. First, the documentary evidence contradicts Plaintiffs’ argument that 71 Park was in near privity with Fox. As stated above, the Engagement Letter disclaimer stated that Fox agreed to represent only NP, not 71 Park. Second, the Land Opinion letter, which 71 Park alleges that it relied upon to its detriment, was addressed to Savitar and stated that it could “only be relied upon by the entities to which it is addressed … and may not be relied upon by any other person or entity …. ” Lastly, the complaint is devoid of any allegations that 71 Park requested legal advice from Fox, that Fox agreed to perform a specific task for 71 Park, or that there was any direct contact between Fox and 71 Park after the latter entity was formed. In fact, Fox continued to address its invoices to NP as per the Engagement Letter through
2016. Thus, Fox and 71 Park did not have a relationship of near privity. See Wei Cheng Chang, 288 A.D.2d at 380-381.

The documents executed by the parties preclude a finding of an attorney-client relationship between Fox and 71 Park. Based upon this documentary evidence, I dismiss Plaintiffs’ cause of action for legal malpractice and do not address the remaining arguments in support of dismissal. ”


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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.