The City of New York waited too long to try to amend its third-party complaint.  The Court found that the City knew all the facts upon which the new complaint might be based and after 26 depositions or so, its just too late.

Commodore Constr. Corp. v City of New York  2019 NY Slip Op 31316(U)  May 8, 2019
Supreme Court, New York County  Docket Number: 651969/2015  Judge: Andrew Borrok reminds that while freely given, amendment may not cause prejudice.

“Leave to amend under CPLR § 3025 (b) is committed to the sound discretion of the trial court
(Colon v Citicorp Inv. Servs., 283 AD2d 193, 193 [1st Dept 2001], citing Edenwald Contr. Co. v
New York, 60 NY2d 957, 959 [1983]). Leave to amend pleadings should be freely given unless
there is prejudice or surprise resulting from the delay to the opposing party or if the proposed
amendment is “palpably improper or insufficient as a matter of law” (McGhee v Odell, 96 AD3d
449, 450 [1st Dept 2012])

In this case, the City proposes to amend its complaint nearly four years after filing this lawsuit,
following 28 party depositions after extensive document discovery which extensive document
discovery followed pre-litigation and mediation (NYSCEF Doc. No. 241, iii! 3-13). At this late
stage in the litigation, when discovery is nearly completed, amendment of the City’s complaint to
bring direct claims against the third-party defendants would be highly prejudicial.”

“In any event, the City’s proposed claims for professional malpractice and negligent misrepresentation are devoid of merit as there is no privity between the City and the third-party defendants (see Greenstreet of NY, Inc. v Davis, 166 AD3d 470 [1st Dept 2018]). In addition, the allegations in support of the additional claims for negligent misrepresentation and malpractice are entirely conclusory and insufficient. In fact, the negligent misrepresentation does not even allege a single misrepresentation. Finally, Pier 59 Studios, L.P. v Chelsea Piers, L.P., which is cited by the City on reply, is inapposite as, in that case, the proposed amendment was based on newly discovered evidence, which is not the case here (40 AD3d 363 [1st Dept 2007]).”

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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.