Martin v Claude Castro & Assoc. PLLC 2023 NY Slip Op 50099(U) Decided on February 9, 2023 Supreme Court, New York County Lebovits, J. illustrates the wide breadth and strength of the attorney-judgment rule in legal malpractice.

“This is a legal-malpractice action. Defendants, Claude Castro and Associates PLLC, Claude Castro, Esq., and Daniel Paul Martin, Esq., represented plaintiffs, Steven and Jodee Martin, in multiple lawsuits in Housing Court and Supreme Court that arose from a carpet-beetle infestation in the Martins’ Manhattan apartments. The Housing Court proceeding, brought by plaintiffs’ landlord, was decided against them. The Supreme Court action, brought by plaintiffs, was voluntarily discontinued.

Plaintiffs, dissatisfied with the outcomes of those lawsuits, and with defendants’ legal representation, later brought this action. Plaintiffs initially asserted several causes of action, of [*2]which the only one that remains is a legal-malpractice claim. Defendants now move for summary judgment dismissing the malpractice claim. Plaintiffs cross-move for summary judgment in their favor on that claim. Defendants’ motion is granted; plaintiffs’ cross-motion is denied.”

“Under the attorney judgment rule “[a]n attorney’s selection of one among several reasonable courses of action does not constitute malpractice.” (Rosner v Paley, 65 NY2d 736, 738 [1985].) Legal strategies with a reasonable basis are not actionable. Nor is a former client’s “hindsight criticism” of a legal strategy. (Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 667 [1st Dept 2017].)

Plaintiffs argue that defendant Castro’s decision not to raise a breach of the warranty of habitability as an affirmative defense in the Housing Court answer constituted malpractice. In support, plaintiffs point to Justice York’s May 2010 decision, which noted that Housing Court would be the more appropriate forum for landlord-tenant matters. Plaintiffs also argue that Castro incorrectly believed he would be barred from raising a breach of the warranty of habitability as both an affirmative defense in Housing Court and a separate claim in Supreme Court. Plaintiffs argue that Castro’s choice not to raise the defense in his answer to the nonpayment proceedings caused plaintiffs to suffer damages in the form of judgments rendered against them.

This court concludes that Castro’s decision to refrain initially from raising a warranty-of-habitability defense in his Housing Court answer, in favor of raising it as an affirmative claim in Supreme Court, was a reasonable strategic choice rather than actionable malpractice.

An attorney may choose to bring an affirmative action for a breach of the warranty of habitability in Supreme Court. (See Fabricius v 1150 Fifth Ave. Owners Corp, 2021 NY Slip Op 30215[U], at *2 [Sup Ct, NY County 2021]; Metro 765, Inc. v Eighth Ave. Sky, LLC, 2017 NY Slip Op 30898[U], at *5 [Sup Ct, NY County 2017]; W. 189, LLC v Louis-Jeune, 2016 NY Slip Op 31614[U], at *1 [Sup Ct, NY County 2016].) And Castro has provided valid and reasonable explanations for his choosing to litigate the warranty of habitability claim in the Supreme Court. For example, his clients would be entitled to discovery as of right in an action in Supreme Court; whereas discovery is available in a nonpayment summary proceeding in Housing Court only upon a showing of “ample need.” (New York Univ. v Farkas, 121 Misc 2d 643, 646 [Civ Ct, NY County 1983].) And the Martins would not be able to assert in Housing Court claims for property or emotional distress that were grounded in a breach of the lease or the warranty of habitability, because “damages traditionally within the scope of tort liability . . . are more appropriately tried outside the limited sphere of landlord-tenant proceedings.” (390 W. End [*5]Associates v Raiff, 166 Misc 2d 730, 734-735 [App Term, 1st Dept 1995]; see also NY City Civ Ct Act (CCA) § 110 [a] [delineating scope of actions and proceedings to be heard in Housing Court]; 610 West 142nd St. Owners Corp. v Braxton, 140 Misc 2d 826, 827 [App Term, 1st Dept 1988].)

To be sure, Castro erred in believing that the Martins could not obtain an injunction in Housing Court compelling landlord to abate the insect infestation in the plaintiffs’ apartment and the building. (See Central Park Gardens, Inc. v Klein, 107 Misc 2d 414, 415 [Civ Ct, NY County 1980] [holding that CCA § 110 confers on Housing Court “the power to issue injunctions and restraining orders for the enforcement of housing standards promulgated under State and local laws”].) But even setting this (erroneous) reason aside, Castro’s other reasons for proceeding in Supreme Court rather than Housing Court are valid and reasonable justifications for that strategic choice.

Castro also erred in his initial belief that he could not have both brought an affirmative warranty-of-habitability claim in Supreme Court and raised a warranty-of-habitability defense in Housing Court. (See Atherton v 21 E. 92nd St. Corp., 149 AD2d 354, 355 [1st Dept 1989] [“[P]laintiff’s claim for breach of the implied warranty of habitability may be interposed as a defense to the Civil Court action for rent and has been raised affirmatively in the Supreme Court action.”) But the record of the Housing Court proceeding reflects that Castro attempted to correct this error by moving to amend the Martins’ answer in that proceeding to add a warranty-of-habitability defense.[FN6] Castro persuasively argued in his papers on that motion that landlord would not be prejudiced by adding a warranty-of-habitability defense because landlord had been well aware of the carpet-beetle infestation before litigation began, and that a claim for the breach of the warranty of habitability arising from that infestation was pending in Supreme Court. And landlord conceded that it was aware of the substance of the proceedings in the Supreme Court.

Housing Court nonetheless denied Castro’s motion to amend his pleadings, based on Supreme Court’s consolidation decision, which the court read as holding that plaintiffs’ warranty-of-habitability claim raised in the Supreme Court action was completely unrelated to their defenses in the Housing Court proceeding. (See NYSCEF No. 155 at 4-5.) It is not clear, though, why Housing Court should have viewed itself as bound by Supreme Court’s legal conclusion on that point; nor, for that matter, why it should matter for leave-to-amend purposes that plaintiffs’ warranty-of-habitability defense to landlord’s rent-nonpayment claims in Housing Court would rest on different facts from plaintiffs’ other defenses. That Housing Court perhaps erred in rejecting Castro’s proper arguments for permitting plaintiffs to amend their pleadings does not constitute malpractice on Castro’s part.

Further, even if Castro’s decision not to raise the warranty of habitability in the initial Housing Court answer fell below reasonable professional standards, plaintiffs have not shown that a dispute of fact exists about whether that decision proximately caused them harm. It did not. The statute of limitations for a warranty-of-habitability claim is six years from accrual. (See CPLR 213 [2].) Here, the claim accrued no earlier than November 2009. Because the Supreme Court action was discontinued without prejudice, plaintiffs could, if they chose, have refiled a [*6]warranty-of-habitability claim (and thus recovered part of the rent awarded to their landlord in the Housing Court proceeding, plus attorney fees) until November 2015. Plaintiffs did not do so. Nor were they prevented from doing so by any act of defendants.”

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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.