In Greenstreet of N.Y., Inc. v Davis  2018 NY Slip Op 07837 Decided on November 15, 2018
Appellate Division, First Department the distinction is meaningless.  This construction/building code case raises the question of privity and near privity.

“Whether characterized as professional malpractice or negligent misrepresentation, the central issue is whether plaintiff has sufficiently alleged a relationship of privity with Gibson and Seinuk, or the functional equivalent of privity, to impose a duty owed on them in relation to plaintiff (see North Star Contr. Corp. v MTA Capital Constr. Co., 120 AD3d 1066, 1069 [1st Dept 2014]; Bullmore v Ernst & Young Cayman Is., 45 AD3d 461, 464 [1st Dept 2007]).

Here, the court properly determined that the amended complaint, as amplified by the affidavit from plaintiff’s president (see Wall St. Assoc. v Brodsky, 257 AD2d 526, 526-527 [1st Dept 1999]), has adequately asserted such a relationship. Plaintiff alleges that it had direct communications with Gibson and Seinuk during the course of the project; that defendants were aware that the drawings submitted were incorrect insofar as Gibson failed to reference structural insulated panels (SIPs); that Seinuk negligently advised plaintiff to back the SIPs with plywood out of concern for wind shear and failed to advise plaintiff that doing so would violate the New York City Building Code; that Gibson and Seinuk knew that plaintiff would rely on their drawings and representations; and that plaintiff reasonably relied on these representations (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425 [1989]).”