Court appoints a jewelry appraiser as a neutral, and the neutral then send retainer agreements to the parties. Only one party signs the retainer agreement. Appraiser then renders report which one party disputes. Can there be a professional negligence claim?
Lintz v Aretz 2018 NY Slip Op 30455(U) March 12, 2018 Supreme Court, New York County
Docket Number: 651766/2015 Judge: Barbara Jaffe says “no.”
“A party asserting a claim for professional malpractice or negligence must establish the
existence of a contractual .relationship or a bond between it and the professional that is the
functional equivalent of contractual privity. (Bullmore v Ernst & Young Cayman Is., 45 AD3d
461 [1st Dept 2007]). A relationship that constitutes the functional equivalent of contractual privity is one where there is: (1) awareness that information will be used for a particular purpose;
(2) reliance by a party in furtherance of that purpose; and (3) some conduct by the other party
linking them to the party and indicating their understanding of their reliance. (Ossining Union
Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417 [ 1989]).
Moreover, to the extent that a claim for negligent appraisal may be deemed one for
negligent misrepresentation, the party asserting the negligence must establish both reliance and
the existence of a special relationship between it and other party. (See e.g., Ravenna v Christie’s
Inc., 289 AD2d 15 [1st Dept 2001] [where plaintiff brought negligent misrepresentation claim
based on allegation that art specialist gave him wrong information about artwork’s origin,
causing damage, claim dismissed as no special relationship existed between them,
notwithstanding specialist’s awareness that plaintiff would rely on advice]).
Having inconsistently alleged that Aretz was both court-appointed and improperly
retained only by her husband and that only her husband was Aretz’s client, plaintiff thereby
demonstrates: 1) that there was no contractual relationship or its functional equivalent between
her and Aretz; and 2) that neither she nor her husband had either a special relationship or one ·
constituting the functional equivalent of privity with Aretz, as Aretz’s duty was to the court
rather than to either litigant. While she alleges that defendants failed to provide her with the
retainer agreement, thereby thwarting her from signing it and establishing a special relationship,
defendants prove that a copy of the agreement was faxed both to her and to her divorce attorney.
Thus, plaintiffs mere denial of receipt raises no triable issue of fact as to whether there was or
should have been a contractual relationship between her and defendants. To the extent she now
disputes the appointment, she does so in a fatally conclusory fashion, and fails to explain the
contrary allegation in her complaint.
There is also no evidence that plaintiff was unable to hire her own appraiser or that,
having received Aretz’s appraisal before the trial, she could not verify it before it was offered at
trial. And, while plaintiff alleges that Aretz’s retainer agreement with her husband violated his
ethical or expert duty to act as a neutral evaluator, that fact alone is insufficient to hold him
liable. (See e.g., Cohen v Kachroo, 115 AD3d 512 [l51 Dept 2014] [violation of rules of
professional conduct or ethical rules, in and of itself, does not constitute malpractice]).”