We look to the Courts for legal guidance, and practitioners look to Appellate decisions in order to understand guiding principles.  In a legal malpractice setting, one question might be whether the standard of practice requires attorneys to ensure that a purchaser of real property gets everything that is promised in the contract of sale?

This question arises in Mah v 40-44 W. 120th St. Assoc., LLC  2021 NY Slip Op 02365 Decided on April 20, 2021 Appellate Division, First Department and there is an answer but with little guidance.  Plaintiffs bought an apartment which was to have a private roof deck.  They did not get it.

“In this breach of contract and legal malpractice action, defendant attorney Sheryl D. Jassen represented plaintiffs Timothy Lloyd Mah and James M. Carter III in connection with their purchase of a penthouse residential condominium unit. The condo unit was sold by defendant 40-44 West 120th Street Associates LLC (the sponsor), which agreed to construct a private roof deck in compliance with all appropriate laws and regulations of governmental agencies. The roof deck was included in the square footage assigned to the unit for purposes of dividing common charges. At the time of closing, construction on the roof deck was not complete and the certificate of occupancy did not address the roof.

Plaintiffs allege that the deck delivered by the sponsor after closing was not legal because it did not have a corresponding amended certificate of occupancy, and the sponsor could not have obtained an amended certificate because the building’s floor area already exceeded what was permitted under applicable zoning regulations. Plaintiffs allege that prior to closing, defendant Jassen failed to inform them that the certificate of occupancy had not yet been amended to allow for or permit the deck. They claim that but for defendant Jassen’s malpractice they would not have purchased the unit, they would not have been assigned increased common charges based on the deck’s square footage, and they would not have renovated the roof deck, attempted to “legalize” it, or removed it.

Plaintiffs’ theories of proximate cause are interrupted by an intervening act and are impermissibly speculative (see Lisi v Lowenstein Sandler LLP, 170 AD3d 461, 462 [1st Dept 2019]; Excelsior Capitol LLC v K&L Gates LLP, 138 AD3d 492 [1st Dept 2016], lv denied 28 NY3d 906 [2016]). The sponsor’s failure to deliver a legal deck is at the core of plainitiffs’ alleged damages. The sponsor’s alleged breach of contract was “independent of or far removed from [defendant Jassen’s] conduct,” and thus, severed any proximate cause flowing from her representation (Kriz v Schum, 75 NY2d 25, 36 [1989] [internal quotation marks omitted]). Plaintiffs’ assertion that but for defendant Jassen’s negligence they would not have purchased the condo unit relies on gross speculation of future events.”

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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.