Vernum v Freyer  2021 NY Slip Op 50120(U) [70 Misc 3d 1218(A)]  Decided on February 11, 2021 Supreme Court, Warren County Muller, J. describes a curious representation and ends with a split decision.

“Defendant is a licensed attorney in New York who focuses her practice primarily on real estate transactions. In May 2017 she was retained by plaintiff, as executrix of the estate of Clay A. Beaudet (hereinafter Clay), to represent her in the sale of two parcels of land located at 9 Rhode Island Avenue and 0 Rhode Island Avenue in the Town of Queensbury, Warren County. 9 Rhode Island Avenue is .14 acres in size and improved by a single-family dwelling. 0 Rhode Island Avenue — which is located immediately adjacent to 9 Rhode Island Avenue — is .21 acres in size and unimproved. At the time of this initial retainer, plaintiff had contracted to sell both parcels of land to DKC Holdings, Inc. (hereinafter DKC). These contracts were subsequently cancelled, however, when certain title issues were discovered and DKC was unwilling to await their resolution.

Specifically, defendant discovered that Clay never held title to 0 Rhode Island Avenue. Both 9 Rhode Island Avenue and 0 Rhode Island Avenue were previously owned by Dorothy Skellie (hereinafter Dorothy) and her husband, Ernest Skellie (hereinafter Ernest), as tenants by the entirety. Ernest died in 1998, leaving his interest in the property to Dorothy, who then married Clay. In 2006, Dorothy executed a warranty deed conveying 9 Rhode Island Avenue from herself to herself and Clay as tenants by the entirety. She did not, however, convey title to 0 Rhode Island Avenue, which she continued to own individually until dying intestate in 2013. [*2]Upon her death, Clay acquired an ownership interest in 0 Rhode Island Avenue as Dorothy’s surviving spouse. Defendant advised that an investigation was necessary, however, to determine whether Dorothy had other heirs who might also have an interest in the property.”

“The Court finds that the documentary evidence succeeds in refuting plaintiff’s first cause of action. It is clear that—until defendant discovered the title issues with respect to 0 Rhode Island Avenue—plaintiff believed the property was owned by her father. Indeed, she paid the property taxes on 0 Rhode Island Avenue in 2016 as the executrix of his estate. It is likewise clear that plaintiff wanted defendant to contact Bernard and in fact assisted defendant in [*3]contacting him to ensure that she could close on the sale of 0 Rhode Island Avenue simultaneous with the sale of 9 Rhode Island Avenue, as intended. In this regard, it bears noting that plaintiff signed the January 2018 sales contract for 0 Rhode Island Avenue as “seller.” At the time of signing, she was aware of the title issues relative to the property and was actively assisting defendant in resolving them. The record thus demonstrates that plaintiff was fully aware of and consented to defendant’s simultaneous representation of her in the sale of 9 Rhode Island Avenue, and her and Bernard in the sale of 0 Rhode Island Avenue.

That being said, the Court declines to find that this documentary evidence refutes plaintiff’s second cause of action. At the outset, it appears that the mortgage was intended to cover 9 Rhode Island Avenue, but erroneously included a description of 0 Rhode Island Avenue. Indeed, the mortgage expressly states that the property covered is improved by a one or two-family residence—and 0 Rhode Island Avenue is unimproved. Further, the mortgagee clearly believed that the mortgage covered 9 Rhode Island Avenue, as it paid the property taxes on 9 Rhode Island Avenue from escrowed funds and included the address of the property in its payoff letter. Finally, a mortgagee would unlikely accept a vacant parcel like 0 Rhode Island Avenue as security for a $62,997.71 loan. The problem, however, is that the mortgage was no longer valid at the time the properties were sold. As such, the mortgage should not have been paid from the proceeds of any sale—be it the sale of 9 Rhode Island Avenue or the sale of 0 Rhode Island Avenue.”

“Having found that defendant established her entitlement to dismissal of the first cause of action based upon documentary evidence, the Court focuses solely upon whether she is entitled to dismissal of the second cause of action on the grounds of failure to state a claim. In this regard, it is impossible to say whether the outcome in the underlying matter would have been more favorable to plaintiff had the mortgage not been paid from the proceeds of sale for 9 Rhode Island Avenue. To the extent that the purchasers were related and their title agent, Maple Abstract, required the mortgage to be paid off and satisfied as a condition to issuance of the title policies,[FN2] it is possible that the sales would have fallen through had defendant not paid the mortgage off. Plaintiff would thus have remained responsible for the properties and their concomitant costs until another buyer came along. If the sales had somehow gone forward notwithstanding plaintiff’s refusal to pay off the mortgage and she had walked away with the $48,162.95, then litigation of some sort surely would have resulted. While it does not appear that Clay’s estate would have born any liability for the amount due and owing under the loan,[FN3] his estate would likely have been named in the litigation—thus resulting in legal fees for [*5]plaintiff.

In any event, mindful that plaintiff must be accorded the benefit of every favorable inference, the Court finds that defendant has failed to establish her entitlement to dismissal of the second cause of action on the grounds of failure to state a cause of action.”

 

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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.