Cortland Apts., LLC v Simbari Design Architecture, PLLC  2019 NY Slip Op 50331(U)
Decided on March 19, 2019 Supreme Court, Cortland County Guy, J. is a companion case to Universe Ave. LLC v. Simbari Design Architecture PLLC and raises an interesting question:  When a professional opines that work conforms to a statute is it negligence when the governmental authority charged with enforcing the statute offers a novel interpretation that upsets the prior understanding and determines that the work does not conform to the statue?

Here, the architect opined (placed a seal on the drawings confirming that they conformed to the building and zoning laws) and the City of Cortland then dithered over whether a variance was necessary.  First no, then yes, and then a court stepped in and found that although in the past no variance was required, now it was.

“Based on the undisputed facts, it is clear the City of Cortland historically interpreted its zoning code to not require variances for projects like the ones at issue in this case. That historic interpretation went into flux as these projects developed. The City indicated it would require a variance for the proposed work at 5 Monroe Heights, then reversed that position. Defendant submitted sealed drawings for the projects at both properties in May 2011; the City issued building permits for both projects. The City then issued stop work orders for the projects, leading to Plaintiff’s appeal and Article 78 proceeding that resulted in judicial interpretation of the code. The Zoning Board of Appeals eventually denied the requests for variances on both projects, requiring Plaintiff to undo construction he had already completed.

Plaintiff submitted the affidavit of Thomas A. Zimmerman, a licensed architect with more than forty years of experience in the field. Zimmerman opined that by affixing the seal to the construction drawings for both projects, Defendant represented that the drawings confirmed to “all applicable codes.” According to Zimmerman, Defendant, “in the exercise of due care in performing their professional duties, should have discovered, recognized, and advised their clients [on the code issue] well in advance of their preparation and sealing of construction drawings.” (Zimmerman Affidavit, paragraph 31).

Zimmerman stops short of indicating whether the professional standard of care required an architect in Defendant’s position to certify his drawings confirmed with applicable codes as written or applicable codes as interpreted by the local authorities. Neither party has addressed this open question in his respective papers. The Court finds that it is not a question that falls within the competence of a lay factfinder to evaluate or for the Court to ultimately decide on this summary judgment motion. See Ungersupra at 777; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 127 AD3d 1377 (3d Dept 2015) (bench trial on issue of common law architectural standard of professional care, with expert testimony from both plaintiff and defendant); Town of [*7]Kinderhook v Vona, 136 AD3d 1202 (3d Dept 2016) (summary judgment in accounting malpractice case not granted where plaintiff and defendant both submitted expert affidavits) .

The Court finds Defendant met his initial burden for summary judgment on the professional malpractice claim, but granting all reasonable inferences in Plaintiff’s favor, Plaintiff has submitted sufficient proof in admissible form to establish the existence of material fact issues, requiring the denial of summary judgment.

Plaintiff’s negligence and negligent misrepresentation claims rely on the same set of facts as the contract and professional malpractice claims. Both claims are dismissed as duplicative of the other claims. 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…

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.