Let’s assume that an attorney fails to make sure that there is a certificate of occupancy for the finished version of a home, and then a tree falls on the house, do we know enough to determine whether there was legal malpractice?  We fall into a familiar trap if our analysis ends with identification of a departure.  We must go on to reason whether the departure led to a bad proximate result.  In Nill v Schneider  2019 NY Slip Op 04392  Decided on June 5, 2019
Appellate Division, Second Department, there was a departure, but the Court found no proximate damage.  It appears that the homeowner got the insurance nevertheless and the certificate of occupancy nevertheless.

“In September 2010, the plaintiff entered into a contract to purchase a one-family home in Stony Brook (hereinafter the subject property) for the sum of $495,000, to be paid in cash. The plaintiff retained the defendant Isabel A. Schneider (hereinafter the defendant) to handle the transaction. The contract required the sellers to deliver a “certificate of occupancy, certificate of existing use or completion . . . for [a] 1 Family dwelling plus deck” prior to the closing. The contract also recited that the plaintiff had inspected the subject property, agreed to take it “as is,” and had not relied upon any representations made by the sellers concerning “any matter or thing affecting or relating to the [subject property].” The defendant obtained a title report, which included a certificate of existing use dated January 15, 1975, for a “1½ story 1 family residence . . . and deck,” and a survey of the subject property from 1974. The title report also included a survey of the subject property dated July 17, 2007, and a survey inspection report dated September 21, 2010.

The closing was held on September 27, 2010. On or about October 30, 2012, during Hurricane Sandy, a tree was uprooted and fell on the subject property, causing substantial damage to the sunroom (hereinafter the Florida room), the deck, and the master bedroom. At her deposition, the plaintiff testified that when the “hundred-foot tree” fell on the subject property, it “came from the side of [her] bedroom, so it took out [her] gable in [her] bedroom, then it went across the [Florida room] and it shattered the roof there, and then it went across the deck and it broke the deck, and then it laid down on the . . . back property line.” The plaintiff called her homeowner’s insurance carrier the next day, made a claim under her homeowner’s insurance policy (hereinafter the policy) for the property damage, and retained an architect to prepare plans for the reconstruction work. Thereafter, the plaintiff was allegedly told by the architect that the Florida room did not have a certificate of occupancy. It is undisputed that the plaintiff subsequently obtained certificates of occupancy for, [*2]inter alia, the Florida room and the deck. The construction work was completed in around June 2015. The plaintiff was reimbursed under the policy for, among other things, the architect fee, the cost of the survey, the permit fee, and the cost of the certificates of occupancy.

The plaintiff commenced this action against, among others, the defendant, to recover damages for legal malpractice, alleging that the defendant was negligent in failing to discover that certain structures on the subject property did not have certificates of occupancy. In particular, she asserted that the 2007 survey of the subject property, as compared to the certificate of existing use, showed the addition of, inter alia, the Florida room, the deck, and “the extension of the southern wall in the master bedroom.” The plaintiff subsequently moved for, inter alia, summary judgment on the issue of liability, and the defendant cross-moved for summary judgment dismissing the amended complaint insofar as asserted against her. By order dated November 14, 2016, the Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion. The plaintiff appeals. We affirm.”



Email this postTweet this postLike this postShare this post on LinkedIn
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.