What is an attorney at a real estate closing required to do and when does a failure to do so bleed into legal malpractice?  Mah v 40-44 W. 120th St. Assoc., LLC,  2019 NY Slip Op 33071(U)  October 10, 2019 Supreme Court, New York County  Docket Number: 650927/2016  Judge: Robert R. Reed provides some answers.  Here, in a condo development gut renovation the purchasers were promised roof decks.  The City Department of Buildings ruled them illegal.

“In this action, plaintiffs seek damages against the sponsor, the sponsor’s exclusive listing agents, and the attorneys who represented plaintiffs in their purchases of apartments Penthouse A (PHA) and Penthouse D (PHD) in the Park Place Condominium in Manhattan. Plaintiffs Timothy Lloyd Mah and James M. Carter III purchased PHA around September 5, 2012, and plaintiff Crystal Cash purchased PHD around September 7, 2012. ”

“As plaintiffs note, the complaint alleges that Jassen did not exercise “the degree of care, skill, and diligence commonly possessed and exercised by ordinary members of the legal community in performing pre-contract and post-contract ‘due diligence’ and review of title”
(NYSCEF Doc. No. 181 [Resko Aff in Opp] if 14 [quoting complaint]). To prevail on summary judgment, Jassen must show that the activities she has described are consistent with legal standards. As Jassen has not produced evidence showing that “she exercised an ordinary [degree
of] skill and knowledge” for real estate lawyers in the community, she has not sustained her burden on this motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Bakcheva, 169 AD3d at 625).

In addition, Jassen contends, Mah and Carter have not shown that she had access to information which showed that the roof deck was illegal. As plaintiffs’ opposition indicates, however, Jassen bears the initial burden in the context of her motion (see NYSCEF Doc. No. 181 [Resko Aff in Opp] if 16] [citing, inter alia, Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). She states that she was not negligent in checking the Certificate of Occupancy (CO) for the building because until the roof deck was constructed, the document would not include it as a permissible use. Department of Building’s Guide to: Certificate of Occupancy, which Jassen annexes, states although a building must update a CO if it changes or expands the building’s use, a final CO is issued only “when the completed construction work matches the submitted plans” (NYSCEF Doc. No. 121 ). This does not vitiate Mah and Carter’s contention, however, as there is an issue of fact as to whether Jassen should have taken any further steps, especially as the roof deck was a particular area of concern for her clients (see, e.g., NYSCEF Doc. Nos. 115-119 [email chains]). Jassen’s statement that that she “diligently reviewed the transaction documents” and went over the documents with Mah (NYSCEF Doc. No. 104 [Jassen Aff in Support] iii! 16-17) may support her argument at trial but does not refute the argument of her former clients (cf Bakcheva, 169 AD3d at 625). Furthermore, Jassen’s statement that she explained that the CO “could not and did not reflect use of the roof deck” (NYSCEF Doc. No. 104 [Jassen Aff in Support]~ 43) merely raises an issue of fact in light of the affidavits of Mah and Carter, which state that Jassen provided no
such explanation (see NYSCEF Doc. No. 186 [Mah Aff in Opp]~~ 5, 8; NYSCEF Doc. No. 187 [Carter Aff in Opp]~~ 6, 8).

Jassen argues that Mah and Carter additionally cannot show proximate cause. However, Mah and Carter claim that, if Jassen had not been negligent, she would have learned of the problem with the use of the roof and they would not have purchased the apartment or undertook to renovate the roof (compare Stackpole v Cohen, Ehrlich & Frankel, LLP, 82 AD3d 609, 610 [1st Dept 2011] [after a nonjury trial, the court properly dismissed the claim because plaintiff did not show that
“but for defendant’s negligence, she would not have purchased the apartment”]). This creates an issue of fact and renders summary judgment improper. ”


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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.