Board of Mgrs. of 100 Congress Condominium v SDS Congress, LLC  2017 NY Slip Op 05414  Decided on July 5, 2017  Appellate Division, Second Department offers an explanation of the difference between breach of contract and negligence in an architectural negligence case.

“The plaintiff, suing on behalf of the unit owners of a condominium building in Brooklyn, commenced this action against the defendants, alleging that they negligently built and inspected the building. The defendant Kline Engineering, P.C. (hereinafter KEPC), was retained by the defendant Second Development Services, Inc. (hereinafter SDS), which was alleged to be an agent of the sponsor (i.e., the developer), to perform inspections of the building throughout its construction. KEPC asserted that its agreement with SDS was verbal. The plaintiff asserted two causes of action against KEPC. The sixth cause of action alleged breach of contract on the theory that the plaintiff is a successor-in-interest or a third-party beneficiary of KEPC’s verbal agreement with SDS. The eighth cause of action alleged professional malpractice. KEPC moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint and all cross claims insofar as asserted against it, arguing that the causes of action alleging breach of contract and professional malpractice were barred by documentary evidence (see CPLR 3211[a][1]) and failed to state a cause of action (see CPLR 3211[a][7]). The Supreme Court denied those branches of KEPC’s motion.”

“Taking the allegations in the complaint as true, and affording the plaintiff every favorable inference, the plaintiff sufficiently pleaded a cause of action alleging breach of contract against KEPC based on the theory that it is a successor-in-interest to KEPC’s contract with SDS (see Board of Mgrs. of Alfred Condominium v Carol Mgmt., 214 AD2d at 382; see also 17 E. 96th Owners Corp. v Madison 96th Assoc., LLC, 60 AD3d at 481). Moreover, KPEC did not put forth any documentary evidence that would refute the plaintiff’s allegations as a matter of law (see Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d at 883; Granada Condominium III Assn. v Palomino, 78 AD3d at 997). Accordingly, the Supreme Court properly denied that branch of KEPC’s motion which was to dismiss the sixth cause of action insofar as asserted against it.

The Supreme Court, however, should have granted that branch of KEPC’s motion which was pursuant to CPLR 3211(a) to dismiss the eighth cause of action, alleging professional malpractice, insofar as asserted against it. The plaintiff alleged in the eighth cause of action, in effect, that KEPC negligently performed the services it was retained to complete. “[M]erely alleging that a party breached a contract because it failed to act with due care will not transform a strict [*3]breach of contract claim into a negligence claim” (Verizon N.Y., Inc. v Optical Communications Group, Inc., 91 AD3d 176, 180; see Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d at 883). Here, the plaintiff’s allegations of negligence are merely a restatement of the contractual obligations asserted and seek the identical economic damages as in the sixth cause of action alleging breach of contract (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 390; Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 129 AD3d 676, 679; Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d at 883; Park Edge Condominiums, LLC v Midwood Lbr. & Millwork, Inc., 109 AD3d 890, 891).”