It’s rare to convince a judge that an earlier decision was simply wrong.  Here, in Tutor Perini Bldg. Corp. v Port Auth. of N.Y. & N.J. 2020 NY Slip Op 30045(U) January 6, 2020 Supreme Court, New York County Docket Number: 156211/2018 Judge Andrea Masley took a second look at the law and changed her mind.

“STV, the architect engaged by a third-party to generate construction designs three years before plaintiff was engaged as the general contractor for the project, argues that the court mistakenly applied controlling law in finding that plaintiff adequately alleges that, despite having no contract or other privity with STV, plaintiff’s tort claims may survive a CPLR 3211 motion as there exists a relationship between it and STV that is so close as to constitute the functional equivalent of privity (see Pile Found. Constr. Co. v Berger, Lehman Assoc., 253 A.D2d 484 [2d Dept 1998 [“The Supreme Court properly declined to dismiss the plaintiff’s first cause of action alleging negligent misrepresentation, as the record reveals that the relationship between the plaintiff and the defendants was so close as to be the functional equivalent of privity.”], citing Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424 [1989]).

In Ossining, the Court of Appeals discussed its decision in Credit Alliance Corp. v Arthur Andersen & Co. (65 NY2d 536, 551 [1985], amended 66 NY2d 812 [1985]), and clarified that the three-part Credit Alliance test for negligent misrepresentation claims against non privy parties (id. at 551 [holding that the near-privity requirements include that non privy party (1) was aware the work was to be used for a particular purpose, (2) the work was prepared “in the furtherance of which a known party … was intended to rely,” and (3) engaged in some conduct “linking them to that party” or their “understanding of that party or parties’ reliance”]) applies to more than only accountants (see Ossining, 73 NY2d at 424).

As STY correctly argues, however, the applicability of the Credit Alliance test has been further clarified by the First Department as well as the Court of Appeals in the intervening period between the Second Department’s issuance of Pile Foundation and the Prior Decision.”

“Accordingly, reargument is granted and, upon reargument, plaintiff’s complaint is dismissed as against STV. Here, the architectural plans were created years before plaintiff’s involvement in the project and it is of no moment that the plans were created with the knowledge that, at some future date, an unknown contractor would use the plans in the course of completing the project. Contrary to plaintiff’s arguments in opposition to this motion, the rule of law set forth in Bri-Den does not foreclose all actions against an architect that creates plans for any construction project where the contractor bidding process has not yet begun. Rather, it relegates claims for negative misrepresentation and
professional malpractice to those in privity with, or those that meet the Ossining/Credit Alliance test to raise those claims against the architectural firms, which, in an instance such as this, could have been
raised as direct or third-party claims at the appropriate time by an entity other than plaintiff, which lacks standing to pursue its negligent misrepresentation and professional malpractice claims under BriDen and Sykes. ”


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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.