A building owner wants to convert from office space to residential.  An architect is hired.  Someone forgets to determine whether air rights remain with the building or have previously been sold.  Problem!

140 W. 57th St. Bldg., LLC v Falconer  2019 NY Slip Op  2768(U)  September 18, 2019 Supreme Court, New York County Docket Number: 155934/2019 Judge: Frank P. Nervo discusses the various elements and standards.

“Defendants contend that documentary evidence establishes their defense, as a matter of law, to the instant suit. Dismissal under CPLR § 3211(a)(1) is “warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter oflaw” (Leon v. Martinez, 84 NY2d 83 [1994]). “The evidence submitted in support of such motion must be ‘documentary’ or the motion must be
denied” (Cives Corp. v. George A. Fuller Co., Inc., 97 AD3d 713 [2d Dept 2012]). Documentary evidence is unambiguous, authentic, and undeniable; however, affidavits, deposition testimony, and letters are not considered documentary evidence for the purpose of motions to dismiss (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997 [2d Dept 2010]; see also GEM Holdco, LLC v. Changing World Technologies, L.P., 127 AD3d 598 [1st Dept 2015]). Here, defendants have submitted their own affidavits in support of their motion to dismiss. It is beyond cavil that these affidavits are improper on a CPLR § 3211 (a)(1) motion to dismiss, and the Court will not consider them for that purpose. To the extent that Hill’s affidavit annexes a proposal purportedly accepted ·by plaintiffs, the proposal is unsigned and does not establish a defense, as a matter of law, to plaintiffs’ claims of malpractice (Exhibit 1 to Hill Affidavit).”

“”It is a well-established principle 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” (Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 NY2d 382, 389 [1987]; see also Gelita, LLC v. 133 Second Ave., LLC, 42 Misc 3d 1216[A] [Sup. Ct. NY County (Konreich, J.)] [2014]). Notwithstanding, “[p]rofessionals may be subject to tort liability for failure I to exercise reasonable care, irrespective of their contractual duties” (Sommer v. Fed. Signal Corp., 79 NY2d 540, 551 [1992]). -New York has long recognized tort liability for architectural malpractice (see e.g. 530 E 59 Corp. v. Unger, 43 NY2d 776 [1977]). ”

“Nor is a claim for professional malpractice duplicative of a breach of contract claim, as defendants contend. Professionals are subject to tort liability for their failure to exercise reasonable care, regardless of their contractual duties (Sommer, 79 NY2d at 551; see also 7 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1st Dept 1999]). Consequently, treating the allegations in the complaint as true and according plaintiffs the benefit of every favorable inference, the complaint validity asserts causes of action against defendants for breach of contract and professional malpractice sufficient to survive a motion to dismiss. “