In this architectural malpractice case, the Court finds that both malpractice and breach of contract claims remain viable.
Yellin v Zimmerman 2018 NY Slip Op 04098 Decided on June 7, 2018 Appellate Division, First Department is a case in which there are sufficient different claims so that both malpractice and breach of contract (for different claims remain in play.
“The court correctly determined that the first cause of action, although denominated a claim for professional malpractice, also states a cause of action for breach of contract (see generally Foley v D’Agostino, 21 AD2d 60, 65 [1st Dept 1964]).
The court also correctly found that the breach of contract cause of action is not redundant of the malpractice claim
(see Ferro Fabricators, Inc. v 1807-1811 Park Ave. Dev. Corp., 127 AD3d 479, 480 [1st Dept 2015]. The breach of contract claim is premised upon obligations distinct from those that flow from professional standards of architectural practice, and it seeks damages distinct from those sought under the dismissed malpractice claim.
The court also correctly denied summary dismissal of the breach of contract cause of action since the record presents issues of fact as to whether defendant complied with the particular terms of the contract at issue.”