On Lam v Arnold Montag Architect  2019 NY Slip Op 30712(U)  March 13, 2019 Supreme Court, Kings County Docket Number: 522413/2017 Judge: Pamela L. Fisher discusses the relationship between plaintiffs and sub-contractors of their architects and other professionals, and the requirement of privity in a breach of contract case.

“On March 4, 2013, BTE entered into a contract with nonparty JNE Development (JNE) to provide architectural and engineering services for the construction of a two-family duplex located at 1582A Pacific Street in Brooklyn (property). Subsequently, on May 7, 2014, Montag Architects entered into a written agreement with nonparties Yaniv Zohar and GHIB, LLC (collectively, developers) to perform services in connection with the Preparation of Architectural Plans & Expediting to Supercede Previous Applicant” for the property (see Montag Architects moving papers, exhibit C, affidavit of Arnold Montag [Montag affidavit] at ¶ 2 and exhibit C-1, Montag Architects contract with the nonparty developers at 1).

In November 2014, plaintiffs purchased the real property. Plaintiffs contend that the purchased property has numerous design and construction defects. Plaintiffs further contend that the work performed by defendants BTE and later Montag Architects was defective, and, as a result of BTE’s and Montag Architects’ negligence and malpractice, plaintiffs have incurred $2,000,000 damages.”

“Based on the contracts submitted, Montag Architects and BTE have established that the plaintiffs were not in privity of contract with either defendant. However, plaintiffs do not even allege that they were in contract with either Montag Architects or BTE. Instead, plaintiffs allege that they are intended beneficiaries under the agreement between Montag Architects and the developers. To establish that they were intended third-party beneficiaries, plaintiffs must establish

“(1) the existence of a valid and binding contract between other
parties, (2) that the contract was intended for his/her benefit and
(3) that the benefit to him/her is sufficiently immediate, rather
than incidental, to indicate the assumption by the contracting
parties of a duty to compensate him if the benefit is
lost” (State of California Public Employees’ Retirement System v Sherman
& Sterling, 95 NY2d 427, 435 [2000] ; Burns Jackson Miller
Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983];Cahill
v Lazarski,.226 AD2d 572, 573 [2d Dept 1996]).

“Under this analysis, a professional may be held liable for negligence or malpractice even when they are not retained by plaintiff if a relationship exists between the parties that is so close as to approach privity (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425 [I989]). To establish such a relationship, there must be a showing that (1) the professional was aware that their work would be used for a particular purpose, (2) upon which a known party was intended to rely, and (3) that there was some conduct on the part of the professional linking them to the plaintiff (see Caprer v Nussbaum, 36 AD3d 176, 196 [2d Dept, 2006])”

“Although plaintiffs allege that they are intended beneficiaries, they fail to allege facts sufficient to establish a relationship approaching privity. Plaintiffs were neither parties to, nor express third-party beneficiaries of, either contract at issue. In fact, the contract between Montag Architects and the nonparty developers specifically excludes the creation of a contractual relationship with third parties (see Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704, 710 [2018]; Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 44 [1985]). Plaintiffs rely on a telephone call conducted with defendant Montag; however this conversation alone is insufficient to establish a relationship approaching privity”

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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.