In Apollo Elec., Inc. v Aman Devs. LLC 2023 NY Slip Op 33466(U)
October 5, 2023 Supreme Court, New York County Docket Number: Index No. 155250/2019 Judge Debra A. James surveys the difference between breach of contract by an architect and malpractice by an architect.

The difference can have profound effects on the statute of limitations as well as on the calculation of damages.

” As for the first cause of action sounding in breach of contract against second third-party defendant AT Architects of the second third-party complaint, this court agrees with second third-party plaintiff that his allegations therein sound in breach of contract and not professional malpractice. As in Children’s Corner Learning Ctr v A Miranda Contr. Corp (64 AD3d 318, 324 [1 st Dept 2009]), “the damages sought [by second third-party plaintiff at bar] are economic only.” Second third-party plaintiff does not seek, for example, “the cost to repair the defects or the difference in value between a properly
constructed structure and that which was in fact built”, which is the measure of damages for architectural malpractice (Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 262 [1998]). On that basis, second third party plaintiff is correct that the six-year statute of limitations for breach of contract (CPLR § 213) applies to such claim. As the second third party action was commenced on September 15, 2022, any claims against second third-party defendant that accrued before September 14, 2016, are untimely. However, this court agrees with second third party plaintiff that second third-party defendant has not irrefutably established the accrual date of
such claim, i.e., the date of completion of the actual physical work (see State v Lundin, 60 NY2d 987 [1983]). As contended by second third-party plaintiff, this court holds that the invoice dated April 24, 2017, proffered by second third party defendant, does not irrefutably establish the date on which second thirdparty defendant fulfilled its contractual obligations (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1150- 1151 [2nd Dept 2010] [invoices sent by defendant law firm to plaintiff did not constitute irrefutable documentary evidence that defeated plaintiff’s claim of breach of fiduciary duty by charge of excessive legal fees]).”

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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.