Professionals take on work, and more specifically responsibilities. Some come from the general tort requirement to act reasonably towards the public, some arise from contract. Lam v 933 60th St. Realty Inc.
2019 NY Slip Op 30707(U) March 20, 2019 Supreme Court, Kings County Docket Number: 514453/2018 Judge: Debra Silber is an example of how a carefully drafted retainer agreement/contract can limit potential liability.
“This is an action for property damage allegedly caused to plaintiffs’ properties as a result of excavation work at 1759 Bay Ridge Parkway, which is adjacent to the plaintiffs’ properties. The complaint includes claims against all defendants sounding in negligence, private nuisance, trespass, negligent hiring, negligent supervision, negligent design, encroachment, declaratory judgment, injunctive relief against excavation and construction, injunctive relief seeking removal of trespassing and encroaching structures, and ten causes of action under various sections of article 28 of the Building Code, as well as a professional malpractice claim against the defendant architect, S M Tam Architect PLLC. Plaintiffs initially brought an order to show cause seeking a preliminary injunction, which included a temporary restraining order stopping all work at the site. On the initial return date, the order to show cause was adjourned for plaintiffs to provide an affidavit from an architect or engineer to substantiate the plaintiffs’ allegations of property damage and trespass. The
temporary restraining order was modified to limit its scope to the back half of the construction site, which is closest to the plaintiffs’ properties, which are located on the other side of the block, that is, Block 6215. The request for a preliminary injunction was ultimately denied by the court, based upon plaintiffs’ failure to substantiate their claims of property damage and trespass. It should be noted that while one attorney brought this action and the order to show cause on behalf of all five plaintiffs, by the end of 2018, he only represented plaintiffs Lin and Chee and not the other three plaintiffs, who are now prose. ”
“Here, S M Tam Architect has come forward with documentary evidence that conclusively establishes a defense as a matter of law, under CPLR § 3211(a)(1), and has shown that the complaint fails to state a cause of action against it, under CPLR § Here, S M Tam Architect has come forward with documentary evidence that conclusively establishes a defense as a matter of law, under CPLR § 3211(a)(1), and has shown that the complaint fails to state a cause of action against it, under CPLR § 3211 (a)(7), and that the cross claims against it should be dismissed as well. S M Tam Architect has submitted its contract with the defendant property owner and an engagement letter between the defendant property owner and an engineer for the underpinning designs, as well as the affidavit of its principal, that show that S M Tam Architect had no contractual relationship with plaintiffs, nor any responsibility for the underpinning work, or for overseeing the excavation work, from which a duty in tort to a party not in privily of contract could arise. S M Tam Architect’s contract with the defendant owner expressly excluded “support of excavation application” and “piling design” and provides that SM Tam Architect “shall not have control or charge of, shall not supervise, and shall not be responsible for construction means, methods, techniques, sequences, or procedures, for safety precautions and programs in connection with Project, for failure of any contractor or subcontractor to carry out its respective work in accordance with the contract documents.”
Thus, S M Tam Architect has demonstrated that it had no contractual obligations concerning excavation or underpinning from which a duty to plaintiffs could have arisen (see Am. Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903, 905 [2d Dept 2015] [architect’s “contractual obligations to the Church do not give rise to tort liability in favor of the plaintiffs, as his contract with the owner did not specifically impose any duties with respect to the excavation phase of the project and expressly stated that (architect) did not have control over, and was not responsible for, the construction means and methods or the safety precautions taken in connection with the work”]; 492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991, 994 [2d Dept 2013] [architect who was not retained to provide any services related to protection of adjacent property granted summary judgment]). Further, S M Tam Architect has shown that it was not in privily with plaintiffs, nor did it have a relationship with plaintiffs that was the functional equivalent of privily, from which a
professional malpractice claim could arise (see Sutton Apartments Corp. v Bradhurst 100
Dev. LLC, 107 AD3d 646, 648 [2d Dept 2013] [“The tort claims against the architect fail for
lack of contractual privily, or the functional equivalency of privily”]). “