Claims against a professional for negligence arise from policy reasons, not simply from breach of contract grounds.  So, a non-architect might still be liable for professional negligence.  Silverboys, LLC v Skordas    2015 NY Slip Op 31711(U)   September 4, 2015   Supreme Court, New York   County  Docket Number: 653874/2014  Judge: Saliann Scarpulla is the story of a large-scale residential construction and how things can go wrong, even with contracts, and checks / balances in place.

“The following allegations are drawn from the amended complaint. Silverboys is a Delaware limited liability company owned and managed by the Silvermans, and it “was created to acquire, own, and manage the [Silvermans’ property in the Bahamas].” On or about April 25, 2014, Henry Silverman signed a contract with Skordas, wherein “Skordas agreed to perform traditional architecture services” such as “coordinat[ing] all architectural, structural, MEP, and design drawings.” “Skordas promised to deliver costeffective, honest, and quality supervision and management of an estimated $8 million construction project that included extensive site work, renovation of an existing main residence, and construction of a guest house, pool, and staff residence.” Plaintiffs allege Skordas is responsible for many construction defects, including using inappropriate or inferior materials, installing a “jail-like fence around the property,” constructing “a door to nowhere,” and for failing to maintain proper records or make plans for some of the materials purchased. In addition to acting as an architect, Plaintiffs allege that “Skordas agreed to act as the owner’s representative and the project manager.” Skordas’s alleged responsibilities included, among other things “managing the bidding process for all general contractors and subcontractors, supervising the construction and making regular visits to the construction site, handling all shipments of materials and their clearance through customs, and approving payments to all contractors and subcontractors.” In addition to claims of mismanagement, Plaintiffs allege that Skordas was dishonest during their relationship. One of the alleged incidents of dishonesty occurred on July 21, 2014 when “Silverboys transferred $27,907 to Mr. Skordas as a deposit for a Veyko railing and as full payment for 3 Velux America skylights.” Rather than distributing the funds to and placing the orders with the vendors, the Plaintiffs allege that Skordas, himself, retained the funds. Plaintiffs further allege that Skordas proposed “subcontractors that quoted grossly inflated prices and with which he had undisclosed connections.” For example, Plaintiffs cite a particular instance when Skordas suggested a landscaper who estimated that his work would cost more than $480,000, but “a comparable landscaper, contacted independently by the Silvermans, bid only $270,000 for the same project.”  The Plaintiffs allege that Skordas never held a license to practice as an architect, which is required by New York Education Law §6512 and that Skordas presented himself as an architect and did not hire necessary engineers. ”

“In the second cause of action, Plaintiffs assert that Skordas agreed to perform professional architectural services on the Bahamian Property. I.n addition to performing architectural services without a valid license as required by New York Education Law §6512, Plaintiffs allege that Skordas deviated from acceptable standards of care for architects.  The “elements of [a] professional negligence cause of action … includ[ e] a departure from the applicable standard of care, causation, and damages.” See Health Acquisition Corp. v. Program Risk Mgmt., Inc., 105 A.D.3d 1001, 1004 (2d Dep’t 2013). While Skordas contends that he cannot be liable for malpractice because he is not a licensed architect, defendants who hold themselves out as licensed professionals when they are not may nonetheless be liable for malpractice. See Rudman v. Bancheri, 260 A.D. 957, 957 (2d Dep’t 1940) (“Recovery may be had in such an action as this only if the defendant’s treatment of the plaintiff fell short of the professional standards of skill and care prevailing among those who offer treatment lawfully.”). 1 Second, the Plaintiffs’ professional negligence cause of action is not duplicative of their breach of contract claim. “Professionals … may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties. In these instances, it is policy, not the parties’ contract, that gives rise to a duty of due care.” See Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 551 (1992) (internal citations omitted). Here, Plaintiffs sufficiently allege that Skordas held himself out as an architect while “fail[ing] to exercise reasonable care.” See id. Plaintiffs correctly note that New York courts have held that a party may sue both for breach of contract and professional malpractice. See 17 Vista Fee Assocs. v. Teachers Ins. & Annuity Assoc. of Am., 259 A.D.2d 75, 83 (I st Dept. 1999); see also City of Kingston Water Dept. v. Charles A. Manganaro Consulting Eng’rs, P.C., No. Ol-CV-1317 (LEK/DRH), 2003 WL 355763, at *4 (N.D.N.Y. Feb. 13, 2003) (“Whereas parties may not create a negligence claim simply by alleging that a contracting party was negligent, New York courts have allowed parties to assert professional malpractice claims together with breach of contract claims.”) “