VPC Projects, LLC v Golenbock Eiseman Assor Bell & Peskoe LLP   2020 NY Slip Op 32069(U)   June 2, 2020  Supreme Court, New York County  Docket Number: 156097/2016  Judge: Margaret A. Chan was decided on the question of whether investigating insurance coverage for a nuisance complaint was part of the attorney-retention or merely a ministerial act, for which no legal malpractice could occur.  In the end, judge Chan decided that the attorneys helped out, but did not incur an obligation to handle an insurance claim.

“Soon after opening Veronica Peoples Club (“the bar”) in 2010, plaintiff was met with multiple noise complaints from its neighbors, Peter and Lena Jou. Consequently, plaintiff received citations and was subject to hearings and fines from the New York City’s Department of Environmental Protection (DEP). Peter and Lena Jou ultimately commenced a nuisance action against plaintiff and its landlord on January 2, 2012 (the Jou Action). ”

“Immediately after the commencement of the Jou Action, Robert Millstone sent defendant copies of the pleadings in the Jou Action. On January 4, 2012, an attorney in defendant’s firm, Elizabeth Jaffe, emailed Heather Millstone asking whether plaintiff had insurance coverage. Heather Millstone responded on January 5 and furnished Jaffe with plaintiff’s insurance broker’s name, Jennifer Shoemaker, and her contact information. On January 6, Jaffe emailed Shoemaker at her office, W.B. Payne Co. (the third-party defendant), and requested that Shoemaker send the Jou Action complaint to plaintiff’s insurance carrier in order to serve as plaintiff’s notice of claim. Jaffe also requested that Shoemaker keep Jaffe apprised
of the status of the insurer’s review of the claim; Shoemaker agreed to do so.

In response to the email exchange between Jaffe and Shoemaker, Heather Millstone emailed Jaffe asking whether plaintiff was covered by the insurance carrier, to which Jaffe responded “no, not at all. Probably not, but we will give it a shot just in case” (NYSCEF # 118, Email dated January 6, 2012). On January 10, 2012, Shoemaker faxed a notice of claim and the complaint in the Jou Action to plaintiff’s insurer’s representative, RCN. Shoemaker also confirmed to Jaffe that she sent the notice of claim to plaintiff’s insurer and that she
would advise Jaffe of coverage “as soon as I receive the claim notification with the claim number[,] I will forward over to you for your records” (NYSCEF # 149, Email dated January 10, 2012). ”

“Defendant denies being retained to make an insurance coverage determination for the underlying Jou Action. Defendant characterizes Jaffe’s  equest for the insurance policy and forwarding it to plaintiff’s insurance broker as ministerial acts – not an undertaking of the insurance coverage issue. Defendant  contends that even if an obligation did exist, defendant fulfilled it by tendering the Jou Action complaint to plaintiff’s insurance agent. ”

“As such, defendant has made its prima facie showing that its scope of representation in the Jou Action did not include rendering an insurance coverage determination, including a follow-up on plaintiff’s insurance claim. Plaintiff has not raised an issue of fact to defeat defendant’s prima facie case. In so determining that plaintiff’s insurance coverage issue was not within defendant’s scope of representation, defendant is not liable for failing to act outside the scope of its retention (AmBase Corp., 8 NY3d at 435). Hence, defendant’s
remaining contentions are academic and will not be addressed.

Plaintiff’s claim that defendant’s alleged erroneous advice was the proximate cause of its damages is likewise academic. Nonetheless, plaintiff fails to show that it would not have incurred any damages but for defendant’s alleged negligence (see Rudolf v Shayne, Dachs, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotations and citations omitted]). The Millstones’ respective emails in February and March 2012 show that the prominent reason plaintiff lost its investment or “throwing in the towel” was because the bar was not profitable to warrant dealing with the incessant noise complaints and fines (NYSCEF ## 127, 129, 139).”

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.