Andejo Corp. v South St. Seaport L.P.  2018 NY Slip Op 33431(U)  December 28, 2018
Supreme Court, New York County  Docket Number: 655410/16  Judge: Shlomo S. Hagler catalogues a large number of fraud and fraud related claims, as well as legal malpractice claims, and discusses the elements and the statute of limitations implications for each of them.  This case concerns a large number of tenants who banded together, with little success, to sue the landlord in the years after superstorm Sandy.

“Plaintiffs, commercial tenants who formerly conducted business at the South Street Seaport (“Seaport”), seek compensation from other such tenants for breach all of these parties’ agreement to jointly prosecute a lawsuit against their mutual landlord, and for other alleged tortious conduct.  Plaintiffs also allege tortious conduct by their former landlord, and the landlord’s counsel, and plaintiffs’ former counsel. All of the defendants move to dismiss the complaint (CPLR [a] [1], [5], [7]). ”

“Plaintiffs allege that, in 2004, when the Tenants were considering filing a lawsuit against Landlord, Shapiro recommended Rosenberg as counsel to represent the Tenant Group. In August 2004, the plaintiffs entered into a Joint Claim Agreement with each other, and with Salad and Booth, entitled “South Street Seaport’s Tenants’ Association Joint Claim Agreement (the “JCA”), which was drafted by Rosenberg in collaboration with Shapiro.

In the JCA, the Tenants that executed the agreement, defined in the JCA as “Tenants,” each agreed to share both the expenses in prosecuting the lawsuit against Landlord and any recovery received from Landlord (Felix Moving Affirmation, Exhibit “B”, at 1 [the Tenants agreed to “pool their claims and share in any recovery, payment or compensation of any nature paid by” Landlord]). Paragraph Four of the JCA prohibits a Tenant from individually settling “any claim” with Landlord. Paragraph Four also provides that any Tenant that violated the settlement prohibition would be required to contribute “any compensation or the value of any other consideration received by such Tenant or paid or given for the benefit of such Tenant” to the Tenant Group (JCA, ii 4). 1 Paragraph Six of the JCA (the “Rent Exception Provision”), also prohibits a Tenant from settling with Landlord “except in connection with a settlement or compromise made on behalf of the Tenants.” The Rent Exception Provision requires a Tenant to pay to the Committee for the benefit of other Tenants any “recovery payment, credit or settlement” received by such tenant other than rent relief or a forgiveness of rent arrears [emphasis supplied]. Thus, the Rent Exception Provision explicitly excludes from the settling Tenant’s contribution requirement “any rent relief or forgiveness of rent arrears” (JCA, if 6).

Plaintiffs allege that, prior to the JCA’s execution in August 2004, Shapiro and Rosenberg did not discuss with them the inclusion in the JCA of the Rent Exception Provision, or its implications. Plaintiffs further claim that, based on Shapiro and Rosenberg’s representations about the JCA, plaintiffs understood that any settlement consideration of rent relief, or forgiveness ofrent arrears, that a Tenant received from Landlord belonged to the Tenant Group. Plaintiffs allege that they would not have entered into the JCA, retained Rosenberg, or jointly commenced the lawsuit against Landlord had they been advised of Rosenberg and Shapiro’s current interpretation of the JCA, as permitting a Tenant to individually settle rent arrears claims without the Tenant Group’s consent or without paying the settlement’s value to the group. Plaintiffs contend that Rosenberg and Shapiro were fiduciaries to plaintiffs and, thus, obligated to explain their interpretation of the JCA. ”

“By Order, dated February 16, 2018, this Court granted the motion by RFS to dismiss plaintiffs’ complaint alleging legal malpractice, breach of contract and fraudulent inducement as against Rosenberg and RFS (Fulton Market Retail Fish, Inc. v Todtman Nachamie Spizz &  Johns, P.C. (Sup Ct, NY County, index No. 151002/2015 [“2015 Malpractice Action”]). Although the claims for legal malpractice herein would be barred by the statute of limitations, plaintiffs argue that the claims in this action against the RFS Defendants relate back to the 2015 Malpractice Action. However, without deciding this relation-back issue, given that the 2015 Malpractice Action was dismissed, plaintiffs’ malpractice cause of action asserted herein against Rosenberg and RFS is dismissed.”

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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.