It’s rare to convince a judge that an earlier decision was simply wrong.  Here, in Tutor Perini Bldg. Corp. v Port Auth. of N.Y. & N.J. 2020 NY Slip Op 30045(U) January 6, 2020 Supreme Court, New York County Docket Number: 156211/2018 Judge Andrea Masley took a second look at the law and changed her mind.

“STV, the architect engaged by a third-party to generate construction designs three years before plaintiff was engaged as the general contractor for the project, argues that the court mistakenly applied controlling law in finding that plaintiff adequately alleges that, despite having no contract or other privity with STV, plaintiff’s tort claims may survive a CPLR 3211 motion as there exists a relationship between it and STV that is so close as to constitute the functional equivalent of privity (see Pile Found. Constr. Co. v Berger, Lehman Assoc., 253 A.D2d 484 [2d Dept 1998 [“The Supreme Court properly declined to dismiss the plaintiff’s first cause of action alleging negligent misrepresentation, as the record reveals that the relationship between the plaintiff and the defendants was so close as to be the functional equivalent of privity.”], citing Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424 [1989]).

In Ossining, the Court of Appeals discussed its decision in Credit Alliance Corp. v Arthur Andersen & Co. (65 NY2d 536, 551 [1985], amended 66 NY2d 812 [1985]), and clarified that the three-part Credit Alliance test for negligent misrepresentation claims against non privy parties (id. at 551 [holding that the near-privity requirements include that non privy party (1) was aware the work was to be used for a particular purpose, (2) the work was prepared “in the furtherance of which a known party … was intended to rely,” and (3) engaged in some conduct “linking them to that party” or their “understanding of that party or parties’ reliance”]) applies to more than only accountants (see Ossining, 73 NY2d at 424).

As STY correctly argues, however, the applicability of the Credit Alliance test has been further clarified by the First Department as well as the Court of Appeals in the intervening period between the Second Department’s issuance of Pile Foundation and the Prior Decision.”

“Accordingly, reargument is granted and, upon reargument, plaintiff’s complaint is dismissed as against STV. Here, the architectural plans were created years before plaintiff’s involvement in the project and it is of no moment that the plans were created with the knowledge that, at some future date, an unknown contractor would use the plans in the course of completing the project. Contrary to plaintiff’s arguments in opposition to this motion, the rule of law set forth in Bri-Den does not foreclose all actions against an architect that creates plans for any construction project where the contractor bidding process has not yet begun. Rather, it relegates claims for negative misrepresentation and
professional malpractice to those in privity with, or those that meet the Ossining/Credit Alliance test to raise those claims against the architectural firms, which, in an instance such as this, could have been
raised as direct or third-party claims at the appropriate time by an entity other than plaintiff, which lacks standing to pursue its negligent misrepresentation and professional malpractice claims under BriDen and Sykes. ”