They’re the same, no? Well, no. Malpractice is the negligence of professionals, and simple negligence is the failure to use reasonable means. However, Judge Mendez does a much better job of explaining in All Craft Fabricators, Inc. v Syska Hennessy Group, Inc. 2015 NY Slip Op 32239(U) November 23, 2015 Supreme Court, New York County Docket Number: 155408/2015 , Judge: Manuel J. Mendez.
“Plaintiff All Craft Fabricators, Inc. (herein “All Craft”) was hired by the construction manager – Skanska USA Buildings, Inc. (herein “Skanska”) – to do mill work for the refurbishment (herein “Project”) of the United Nations Headquarters (herein “UNH”), which included work on salvaged wood panels and doors within the offices of the UNH. All Craft shares offices with its affiliate, Donaldson Interiors, Inc. (herein “Donaldson” – collectively known herein as “Plaintiffs”). Plaintiffs claim the doors and panels contained toxic substances, specifically, asbestos, and that no notice of the defective condition was given to them. Plaintiffs allege that during the refurbishment of the doors and panels, due to the asbestos, they were forced to shut down their manufacturing facilities resulting in property damage, business interruption, loss of production, costs to remedy its facility, and costs to dispose of the asbestos. ”
“Plaintiffs claim that Defendant sent crates containing salvaged wood panels and doors from the UNH to perform millwork. The wood panels and doors contained asbestos. Plaintiffs contend that they were not given notice of the defective condition, [* 1] were forced to shut down their manufacturing facility, and incurred damages as a result (see Complaint, PP 12-21 ). The Complaint asserts a cause of action for negligence. Specifically, that Defendant “did not perform its work as a reasonably prudent company would under the circumstances;” did not “comply with applicable laws and regulations;” and that Defendant was “negligent” (see Complaint, PP. 29-31)”
“Defendant claims that this action is time-barred because the crates containing the toxic substance were delivered to Plaintiffs on January 23, 2013, and that Plaintiffs’ claim is for professional negligence and not simple negligence. Defendant argues that the statute of limitations on Plaintiffs’ professional negligence claim accrued on the date of delivery of the crates containing toxic substances and that the three-year statute of limitations period had expired four months prior to Plaintiffs commencing this action. “[M]alpractice in the statutory sense describes the negligence of a professional toward the person for whom he rendered a service, and that an action for malpractice springs from the correlative rights and duties assumed by the parties through the relationship. On the other hand, the wrongful conduct of the professional in rendering services to his client resulting in injury to a party outside the relationship is simple negligence” (Cubito v. Kreisberg, 69 A.D.2d 738, 742, 419 N.Y.S.2d 578, 580 [2″d Dept., 1979)). “A latent injury occurs at the time of exposure: the reason that the injury is latent is that the injury is concealed, and not visible or otherwise apparent (see Giordano v. Market Am., Inc., 15 N.Y.3d 590, 598, 915 N.Y.S.2d 884, 941 N.E.2d 727 (2010)), and the property damage results from the seepage or infiltration of a toxic foreign substance over time” (Suffolk County Water Authority v. Dow Chemical Co., 121 A.D.3d 509, 91 N.Y.S.2d 613, 620 [2″d Dept., 2014)). Plaintiffs were not in privity with Defendant. This action is based on simple negligence and CPLR 214-c applies here because the toxic condition of the doors and wood panels were a latent defect. The statute of limitations on Plaintiffs’ simple negligence accrued on June 7, 2012 when the Plaintiffs’ employees first opened the crates and sustained injuries. This action is timely. “