Cathedral Gardens Condo Assn. v 110th St. Equities, LLC. 2018 NY Slip Op 32618(U)
October 15, 2018 Supreme Court, New York County Docket Number: 600175/2009
Judge: William Franc Perry stands for the principle that there can be either direct liability for a failure to provide professional services (tort) which brings “loss of asset” style damages, or there can be liability in contract with economic damages arising from the payments to the professional.
“Here, plaintiffs breach of contract claim against RKTB was dismissed with leave to replead, specifically because the court found that plaintiff did not sufficiently plead the element of third-party beneficiary to sustain its contract cause of action against RKTB. The court however, did not dismiss the Sixth cause of action against RKTB which was for architectural malpractice, noting that the record was insufficient to determine the end date for completion of construction in order to ascertain the accrual date of the alleged professional malpractice. Specifically, the court held, “[t]here has been no discovery here, and plaintiff should have the opportunity to make a document request and depose Bafitis on the issue of when the work was completed.” (NYSCEF Doc. No. 169, p.18).
As such, the only cause of action that remains against RKTB is one for malpractice which led this court to conclude that RKTB “may be subject to tort liability for failure to exercise reasonable care, irrespective of [its] contractual duties” (Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.Zd 1365  ), and the damages sought by plaintiffs here are not limited to the benefit of the bargain (see Tower Bldg. Restoration v. 20 E. 9th St. Apt. Corp., 295 A.D.2d 229, 229, 744 N.Y.S.2d 319  ).” (NYSCEF Doc. No. 255). Upon review of the papers and caselaw cited in support of Sideris’ motion to reargue, the Court finds it did not overlook any relevant facts or misapply controlling principles of law. “