In Sutton Animal Hosp. PLLC v D&D Dev., Inc. 2018 NY Slip Op 32425(U) September 24, 2018 Supreme Court, New York County Docket Number: 652781/2016 Judge Debra A. James discusses the difference between negligence of a professional to one in privity and to one only in quasi-privity. The difference is enormous.
“Moving defendants are correct that “‘recovery will not be granted to a third person for pecuniary loss arising from the negligent representations of a professional with whom he or she has no contractual relationship'” (Key International Manufacturing, Inc. v Morse/Diesel, Inc., 142 AD2d 448, 452 [2d Dept. 19 88] ) . ”
“The first and sixth causes of action (captioned “counts”) of the first amended complaint are entitled Professional Malpractice” and allege, inter alia, that the architects/engineers:
“failed to meet the standard of care required of all
professional architects/engineers”, “misrepresent[ed] …
architectural/engineering skills”; “fail[ed] to comply with
and uphold professional standards”; “required to exercise.
the ordinary and reasonable skill and knowledge required of
all individuals license[sic] to engage in work as a
professional architect/engineer”; “was bound to exercise
reasonable care in designing and supervising the work it
was contracted to perform”‘ “professional negligence in its
preparation of Construction Plans”; “fail[ed] to exercise
the required care, diligence, skill and learning required
of all professional architects/engineers”.
As plaintiff seeks pecuniary loss only for such deviations from professional standards and does not allege any injury to real or personal property, such allegations state no cognizable claim against the moving defendants.
However, the complaint also alleges that the architect defendants “produced drawings” that were not code compliant and that the engineer defendant incorporated defective mechanical
plans in the Construction Project plans. In addition, the opposing affidavit of plaintiff’s expert states that the architects and engineers misrepresented that they were the Special Inspection Agency on their submissions to the New York City Department of Buildings. Such allegations sound in negligent misrepresentation and are analogous to the inaccurate findings that the Court of Appeals found to be actionable in Ossining Union Free School Dist. v Anderson LaRocca Anderson,
(73 NY2d 417 ). Plaintiff shall be granted leave to amend its pleadings to specify the misrepresentation(s) that were the subject of the drawings and/or mechanical plans that were
transmitted to it, and upon which it reasonably relied to its detriment in the construction of its veterinary hospital.”
“The first amended complaint and opposing affidavit clearly set forth that plaintiff had a relationship with each of them that was the “functional equivalent of contractual privity” as defined in Ossining Union, as such claims meet the three-fold criteria for potential liability of the moving defendants articulated in Ossining Union, to wit, that ” ( 1) [defendants possessed] awareness that the [drawing/plans] were to be used for a particular purpose; (2) [that there was] reliance by a known party or parties in furtherance of that purpose; ·and that there was (3) some conduct
by the defendants linking them to the party or parties and evincing defendants’ understanding of their reliance” (73 NY2d at425). “