A building owner wants to convert from office space to residential.  An architect is hired.  Someone forgets to determine whether air rights remain with the building or have previously been sold.  Problem!

140 W. 57th St. Bldg., LLC v Falconer  2019 NY Slip Op  2768(U)  September 18, 2019 Supreme Court, New York County Docket Number: 155934/2019 Judge: Frank P. Nervo discusses the various elements and standards.

“Defendants contend that documentary evidence establishes their defense, as a matter of law, to the instant suit. Dismissal under CPLR § 3211(a)(1) is “warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter oflaw” (Leon v. Martinez, 84 NY2d 83 [1994]). “The evidence submitted in support of such motion must be ‘documentary’ or the motion must be
denied” (Cives Corp. v. George A. Fuller Co., Inc., 97 AD3d 713 [2d Dept 2012]). Documentary evidence is unambiguous, authentic, and undeniable; however, affidavits, deposition testimony, and letters are not considered documentary evidence for the purpose of motions to dismiss (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997 [2d Dept 2010]; see also GEM Holdco, LLC v. Changing World Technologies, L.P., 127 AD3d 598 [1st Dept 2015]). Here, defendants have submitted their own affidavits in support of their motion to dismiss. It is beyond cavil that these affidavits are improper on a CPLR § 3211 (a)(1) motion to dismiss, and the Court will not consider them for that purpose. To the extent that Hill’s affidavit annexes a proposal purportedly accepted ·by plaintiffs, the proposal is unsigned and does not establish a defense, as a matter of law, to plaintiffs’ claims of malpractice (Exhibit 1 to Hill Affidavit).”

“”It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 NY2d 382, 389 [1987]; see also Gelita, LLC v. 133 Second Ave., LLC, 42 Misc 3d 1216[A] [Sup. Ct. NY County (Konreich, J.)] [2014]). Notwithstanding, “[p]rofessionals may be subject to tort liability for failure I to exercise reasonable care, irrespective of their contractual duties” (Sommer v. Fed. Signal Corp., 79 NY2d 540, 551 [1992]). -New York has long recognized tort liability for architectural malpractice (see e.g. 530 E 59 Corp. v. Unger, 43 NY2d 776 [1977]). ”

“Nor is a claim for professional malpractice duplicative of a breach of contract claim, as defendants contend. Professionals are subject to tort liability for their failure to exercise reasonable care, regardless of their contractual duties (Sommer, 79 NY2d at 551; see also 7 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1st Dept 1999]). Consequently, treating the allegations in the complaint as true and according plaintiffs the benefit of every favorable inference, the complaint validity asserts causes of action against defendants for breach of contract and professional malpractice sufficient to survive a motion to dismiss. “

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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.