What could be more New York than a case about real estate and parking?  Here, the problem was construction of two homes, each of which required off-street parking.  The seller set up a situation in which both houses had the parking, but it all got screwed up.

Muco v Sadiku  2019 NY Slip Op 50709(U)  Decided on May 9, 2019  Supreme Court, Queens County Butler, J is the story of the two purchasers suing each other and every one else too.

“This action concerns two premises: (1) 60-28 60th Place, Maspeth, New York (the Muco premises or the first premises ) and (2) 60-34 60th Place, Maspeth, New York (the Sadiku premises or the second premises). The Mucos claim that the Sadikus are depriving them of an alleged easement burdening the latter’s property which permits the former to use two parking spaces.

Defendant/third party defendant/fourth party plaintiff 60th Court Maspeth LLC (60th Court) is the developer and seller of the two subject premises. Defendant 60th Court hired Vintage Homes, Inc. (Vintage), whose President is Danny Zivan, to serve as a construction manager and representative.

In order to obtain permits to construct the homes on the subject premises, defendant 60th Court had to show it would provide each of them with two off-street parking spaces. The Muco premises was not spacious enough for parking spaces, so defendant 60th Court decided to burden the Sadiku premises with an easement in favor of the Muco premises.

Acting as the representative of 60th Court, Vintage, by Zivan, retained fourth party defendant Rothkrug, Rothkrug & Spector LLP (RRS), a law firm, to prepare an instrument creating a permanent easement benefitting the Muco premises and burdening the Sadiku premises with two parking spaces and a means of access over the latter property from the public street known as 60th Court. RRS alleges that the instrument was merely intended to satisfy NYC Department of Buildings (DOB) requirements concerning construction permits and that the instrument contained no errors of omission or commission.

On February 5, 2009, 60th Court executed a Driveway Space Restrictive Declaration (the Declaration) prepared by RRS. The Declaration provided for an easement allowing ingress and egress over the Sadiku property to and from 60th Court, but did not expressly provide that the current and future owners of the Muco premises were to have exclusive use of two parking spaces on the Sadiku premises. The Declaration was recorded against the two properties on February 17, 2009 in the City Register’s Office.”

“The fourth party complaint brought against defendant Pacht is for legal malpractice. In an action to recover damages for legal malpractice, “a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages ***” ( Island Properties & Equities, LLC v Cox, 93 AD3d 639, 640 [2d Dept 2012]; McCoy v Feinman, 99 NY2d 295 [2002]; Cosmetics Plus Grp., Ltd. v Traub, 105 AD3d 134[1st Dept 2013]; Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721 [2d Dept 2008]).

Pacht, denying that his actions or omissions could have been the proximate cause of any injury sustained by the Sadiku’s or 60th Court, purports to have made a prima facie showing of entitlement to summary judgment dismissing the fourth party complaint by (1) the submission of evidence in the record that Zivan and Demkowics informed the Sadikus before they closed title about the parking easement and (2) an interpretation of the Declaration as granting a parking easement. As to the first ground, the transcripts of the deposition testimony submitted in support of the cross motion contain conflicting versions of the events that occurred prior to the closing of title on the Sadiku premises, raising triable issues of fact, and, thus, Pacht failed to demonstrate a prima facie entitlement to judgment as a matter of law (see Stafford v Allied Bldg. Prod. Corp., 164 AD3d 1398[2d Dept 2018] [failure to make prima facie showing because of conflicting versions of traffic accident]). As to the second ground, this court has previously held that there is an issue of fact as to the meaning and intent of the Declaration. Moreover, Pacht did not rebut additional allegations of malpractice made against him: (1) that although he received a copy of the title report ordered by the Sadikus before they closed title, he failed to bring to the attention of the title company or the attorney for the Sadikus the existence of the Supplemental Declaration, and (2) that he failed to identify the easement on the deed he drew conveying title to the Sadikus.

Pacht is not entitled to summary judgment dismissing the fourth party complaint and all other claims against him.”

“COM did make a prima facie showing that the Sadikus did not sustain any damages. The Sadikus purchased their premises on October 4, 2010 for $690,000.00. COM submitted an appraisal of the Sadiku property as encumbered by the parking easement rendered by Victor Schlesinger of Republic Valuations which concludes that on October 4, 2010, the Sadkiu premises were worth $690,000.00 even as encumbered by the parking easement.

The burden on COM’s cross motion shifted to the Sadiku’s, requiring them to submit evidence showing that there is an issue of fact which must be tried (see Alvarez v Prospect Hospital, supra). They successfully sustained this burden. In regard to the element of actual and ascertainable damages, the Sadikus submitted an appraisal report from Matthew J. Guzowski, the President of Goodman-Marks Associates, Inc., and an affidavit from him which states: “We have determined that the subject property with the easement in place suffers a diminution in value due to the hypothetical easement being contested.” The conflicting affidavits of experts preclude summary judgment (see Haas v F.F. Thompson Hosp., Inc., 86 AD3d 913 [4th Dept 2011]; Florio v Kosimar, 79 AD3d 625 [1st Dept 2010]).

COM is not entitled to summary judgment dismissing the third party complaint and other claims against it.”

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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.