Scope of work is a term of art used by architects; it is similarly a term of art applied to architect contracts and the potential for professional malpractice claims against them.  University Ave., LLC v Simbari Design Architecture, PLLC  2019 NY Slip Op 50330(U)  Decided on March 19, 2019  Supreme Court, Cortland County  Guy, J. is a fine example.  What was the architect hired to do and what did he actually do?

The parties do not dispute certain material facts at issue in this summary judgment motion. Plaintiff is the owner and developer of commercial rental property located at 1344-1350 University Avenue in the City of Rochester. (Calabro Deposition at 16-17).[FN2] Plaintiff’s principal is Christopher J. Calabro, who also owns and operates, through other LLCs, commercial and residential rental properties in at least Monroe and Cortland Counties. At the time of the events involved in this lawsuit, Defendant Simbari Design Architecture, PLLC, an architecture firm of which Defendant Thomas J. Simbari is the principal, was a tenant in Plaintiff’s University [*2]Avenue property. (Calabro Deposition at 16, 30).

In late March 2009, Syracuse Behavioral Health (SBH) expressed an interest in leasing a portion of the space in the University Avenue property. (Calabro Deposition at 311). By the end of that month, Plaintiff and Defendant had entered into an hourly agreement for Defendant to perform, on an as-needed basis, architectural services and design build-out services for the proposed SBH space. (Calabro Deposition at 381-382; 422-423). Plaintiff and Defendant both attended an initial project meeting with SBH on April 3, 2009, where it was clear that SBH needed to occupy the space, if leased, as soon as possible after October 1, 2009. (Simbari Deposition at 681-682; 696-697).

From April through November of 2009, Defendant completed floor plan sketches, preliminary drawings and revisions of those drawings relating to the project. (Simbari Deposition at 744-788, 792-793, 813-816, 821-828). Defendant sent Plaintiff and SBH an initial floor plan on April 17, 2019 and a fee estimate worksheet dated April 24, 2009, to estimate Defendant’s total costs for preparing final construction drawings. (Simbari Deposition at 657, 731, 735-736; 770-771).”

“Some of the work undertaken by Plaintiff’s contractors in advance of delivery of the construction drawings and building permit was inconsistent with the construction drawings and therefore had to be redone. (Calabro Deposition at 372-375; 379-383, 386-388, 401-406). The construction drawings also identified certain fire safety construction requirements, which Plaintiff had not anticipated. (Calabro Deposition at 331-332, 340-341; 353-354, 366-368). In an email dated January 26, 2011, Plaintiff acknowledged to Defendant that the project ultimately cost $350,000, on the low end of the estimated range originally provided by Defendant. (Calabro Deposition at 414). Plaintiff now seeks recovery of the costs of the rework and the unanticipated fire code work. (Calabro Deposition at 406).”

“”A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.” Kung v Zheng, 73 AD3d 862, 863 (2d Dept 2010). It is incumbent upon the plaintiff to present expert testimony to support allegations of malpractice, except where the alleged act of malpractice falls within the competence of a lay jury to evaluate. 530 East 89 Corp. v Unger, 43 NY2d 776, 777 (1977) (internal citations omitted).

The matter of Alvarez v Prospect Hospital is instructive for the outcome of this motion not only for the standard for summary judgment, as recited above, but also in how that standard is applied in the context of a malpractice action. In Alvarez, the defendant-physician’s motion for summary judgment on the plaintiff’s medical malpractice claim was supported by an attorney’s affirmation, hospital records, and the defendant’s deposition testimony. Alvarezsupra at 325. The Court of Appeals rejected Plaintiff’s position that a prima facie case for dismissing a malpractice claim requires an expert affidavit, holding that the “fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof rather than affidavits of fact on personal knowledge, is not fatal to the motion.” Id. (internal citations omitted).

In this case, Defendant has similarly established a prima facie case in support of his summary judgment motion on the malpractice claim through his deposition testimony and his attorney’s affirmation. The architectural services requested by Plaintiff — initially schematics and floor plans, and ultimately detailed construction drawings — were suitably performed by Defendant, as and when requested. As with Plaintiff’s contract claim, Defendant cannot be found to have failed to meet his professional responsibility by not performing services he was not contracted to do. Defendant’s professional duty is measured consistent with the scope of the services he was retained to perform. Seee.g., Greenhaven v Hutchcraft Associates, Inc., 463 N.E. 2d 283 (Ind. Ct. App. 1984); Sch. Bd. v Pierce Goodwin Alexander & Linville, 137 So.3d 1059 (Fla. 4th DCA 2014). In opposition, Plaintiff has offered only conclusory allegations, unsupported by a statement of expert opinion that Defendant did not fulfill his professional duty, required to support a finding of malpractice. Alvarez, supra, at 327. Defendant’s motion for summary judgment dismissing the malpractice claim is granted.

Plaintiff’s complaint also alleges a claim for negligence on the part of Defendant arising from the identical facts alleged to support the breach of contract and malpractice claims addressed above. The negligence claim, grounded on the same facts, is duplicative of the other claims and is also dismissed. See Garten v Shearman & Sterling LLP, 52 AD3d 207, 208 (1st Dept 2008).”

 

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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.