The headline is somewhat misleading.  There may have been deceit, but for Judiciary Law § 487 purposes, the deceit did not take place during a litigation.  Pszeniczny v Horn
2021 NY Slip Op 02553 [193 AD3d 1091] April 28, 2021 Appellate Division, Second Department is the rare case where a complaint survives against an attorney not in actual privity.  That statement, too, is somewhat misleading,  The Court found that there was a “privity-like” relationship.

“”Liability to a third party may attach for negligent misrepresentation where there is ‘(1) an awareness by the maker of the statement that it is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance’ ” (Rides Unlimited of N.Y., Inc. v Engineered Energy Solutions, LLC, 184 AD3d 695, 696 [2020], quoting Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 384 [1992]).

Here, the complaint sufficiently pleaded a cause of action to recover damages for negligent misrepresentation. Contrary to the defendant’s contentions, the complaint alleged a privity-like relationship, as it alleged that the defendant knew the plaintiff was relying on the guaranty to enter into the stipulation, delivered the guaranty to the plaintiff, and assured the plaintiff that Serao had signed the guaranty (see Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d at 385; Remediation Capital Funding LLC v Noto, 147 AD3d 469, 469 [2017]; Lyons v Medical Malpractice Ins. Assn., 286 AD2d 711, 711 [2001]). Accordingly, the Supreme Court should have denied those branches of the defendant’s motion which were to dismiss the first and second causes of action.

“ ’The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages. A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016 (b)’ ” (Shahid v Ridgewood Bushwick Senior Citizens Council, Inc., 181 AD3d 744, 745 [2020], quoting Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]).

Here, contrary to the defendant’s contention, the complaint adequately pleaded a cause of action to recover damages for fraud, as it alleged, in effect, that the defendant misrepresented to the plaintiff that Serao had signed the guaranty in order to persuade the plaintiff to sign the stipulation, that the defendant knew Serao had not signed the guaranty, and that the plaintiff relied on the guaranty in agreeing to execute the stipulation (see e.g. Minico Ins. Agency, LLC v B&M Cleanup Servs., 165 AD3d 776, 777 [2018]; Fox Paine & Co., LLC v Houston Cas. Co., 153 AD3d 673, 677 [2017]).

Accordingly the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the third cause of action.

However, the Supreme Court should have granted that branch of the defendant’s motion which was to dismiss the fourth cause of action. “[A] Judiciary Law § 487 cause of action requires that the alleged deceit occurred during a judicial proceeding in which the plaintiff was a party” (Gorbatov v Tsirelman, 155 AD3d 836, 840 [2017]). Here, the complaint failed to allege that the deceit occurred during a judicial proceeding or before any court (see US Suite LLC v Baratta, Baratta & Aidala LLP, 171 AD3d 551 [2019]; Henry v Brenner, 271 AD2d 647, 647-648 [2000]; see also Gorbatov v Tsirelman, 155 AD3d at 840).”

 

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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.