The development of an apartment building in Manhattan is a mega-big thing.  Not only does it cost a lot, but there are a large number of difficult rules. W 106 Dev. LLC v Pilla  2018 NY Slip Op 32596(U)  October 10, 2018  Supreme Court, New York County  Docket Number: 654801/2016
Judge: Debra A. James  makes it clear that even pros can make mistakes.  However, there remains a difference in whether the wrong is addressed through tort or contract analysis.

“Plaintiff W 108 Development LLC (West 108), a real estate development corporation, is the owner of a building complex (the property} located at 324-326 West 108th Street in the County,
City and State of New York. In this .action, plaintiff alleges that defendants did not
carry out its obligations to develop the· property during the West 108 project.  In its complaint, West 108 first states that, on February 25,201s, it “engaged defendants, as architect . , to complete five separate phases of architectural work” as part of its development project. These comprised: 1) pre-design; 2) schematic design; 3) design development; 4) construction document; and 5} construction administration. Defendants note that there was never a formally executed’ contract.”

“West 108’S second cause of action asserts a claim of “professional malpractice” against both defendants. New York law treats architectural malpractice as a species of “‘professional negligence [which] requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.'” 143 Bergen St., LLC v Ruderman, 144 AD3d 1002, 1003 (2d Dept 2016), quoting Kung v Zheng, 73 AD3d 862, 863 (2d Dept 2010). Here~ the
complaint alleges that defendants committed four negligent departures from architectural standards, including misunderstanding and misapplication of: 1) the “Sliver Law” (New
York City Zoning Resolution§ 23-692); 2) the portion of the Zoning Resolution that governs parking in this neighborhood where the property is situated; 3) the Americans with Disabilities Act and 4) the portion of the New York City Building Code that governs egress requirements for renovated buildings. The complaint also alleges that these departures were the proximate cause of the financial injuries that West 108 consequently suffered. Id. As a result, the ‘court finds that the complaint
satisfies the legal pleading requirements for this cause of action. Defendants, nevertheless, raise two arguments for its dismissal. ”

” Defendants next argue that West 108’ s architectural malpractice claim should be dismissed against.both defendants because the claim is duplicative of West 108’s breach of contract claim. They cite the general rule, promulgated long ago by the Court of Appeals in Clark-Fitzpatrick, Inc. v Long Is. R.R. Co. (70 NY2d 382, 389 [1987]), that “a simple breach of contract is not ‘to be considered a tort unless a legal duty independent of the contract itself has been violated.” West 108
responds by citing the portion of CPLR 3014, which provide that “(c]auses of action or defenses may be stated alternatively or hypothetically,” and arguing that New York courts routinely interpret the statute as permitting an exception, at the pleading stage of litigation, to the general rule that tort based claims should be dismissed when they are duplicitive of the breach of contract claims. West 108’s statement of the law is correct. See .e.g. Citi Mgt. Group, Ltd. v Higbridge House
Ogden, LLC, 45 AD3d 487, 487 (1st Dept.2007). Furthermore, the instant complaint does contain t,he allegation that defendants committed professional malpractice, which certainly constitutes
the violation of a duty separate from a contractual obligation. ”

” However, a review of the complaint shows that as to such tort claim plaintiff seeks “only a benefit of the bargain recovery, viz, economic loss under the contract”, 17. Vista Fee Associates v Teachers Ins.  and Annuity Ass’ n of America, (259 AD2d 75, 83 [1st Dept. 1999]) as opposed to damages for personal injury or property loss. Therefore, the court accepts defendants’ second dismissal argument, and finds that their motion should be granted with respect to West 108’s
architectural malpractice claim.”