Some courts hold that any claim against a “learned professional” must be analyzed via the lens of malpractice, legal, medical or professional. This implies certain statutes of limitation, certain obligations of a professional and other differences between the professional and the lay person. Here, in Sutherland v Fitzpatrick 2020 NY Slip Op 30029(U) January 2, 2020
Supreme Court, Kings County Docket Number: 2090/2018 Judge: Lara J. Genovesi. the court is willing to allow those boundaries to become blurred. Some of the claims are against the opposing attorney for representations made in a contract negotiation setting, some are for work performed thereafter, and some are alleged in regular negligence terms for work performed as an attorney.
“This action arises from plaintiffs purchase of the premises at 4029 Hylan Boulevard, Staten Island, New York, a restaurant/tavern formerly known as the Dugout South. Plaintiff, through Access Unlimited Corporation, purchased the property from Let the Good Times Roll, LLC (the seller). In this transaction, plaintiff was represented by a James D. Bonamassa, Esq. Defendant, Brian Sutherland, represented the seller.
Plaintiff understood the restaurant to have both an indoor and outdoor bar in the patio area. However, the outdoor “Tiki Bar” on the patio was not operating at the time of the negotiations. Plaintiff stated that in the spring of 2015, the seller told him that the outdoor bar was temporarily closed due to a property line dispute with the attorney’s office, located adjacent to the premises. According to plaintiff, this was confirmed by
defendant. Plaintiff believed that the outdoor bar could resume operations once it was properly permitted (see NYSCEF Doc.# 32, Plaintiffs Affidavit in Opposition”
“On September 6, 2015 and September 9, 2015, complaints were filed by the community board regarding plaintiff’s use of the outdoor bar and patio area of the premises. On September 24, 2015, defendant submitted a letter to the Community Board, with an amended application, stating that plaintiff was withdrawing the portion of its application for a liquor license for the patio area. On October 8, 2015, the Community Board withdrew its objections to the liquor license application. On November 9, 2015, liquor license #1287661 was issued to the premises for the indoor areas.”
“As an initial matter, as plaintiff alleged “that the defendant made
misrepresentations of present facts that were collateral to the contract and served as an inducement to enter into the contract, a cause of action alleging fraudulent inducement is not duplicative of a breach of contract cause of action” (Did-it.com, LLC v. Halo Grp., Inc., 174 A.D.3d 682, 102 N.Y.S.3d 687 [2 Dept., 2019], citing Greenberg v. Meyreles,
155 A.D.3d 1001, 66 N.Y.S.3d 297 [2 Dept., 2017]). Here, accepting all the facts alleged in the complaint as true and according plaintiff the benefit of every favorable inference, plaintiff sufficiently plead a cause of action for fraudulent inducement.
The second amended complaint states that defendant represented that the premises had a liquor license for the patio area and that his prior affiliation would enable defendant to streamline the application process and get plaintiff a liquor license for the patio area. Plaintiff relied on this promise when purchasing and renovating the property. Defendants do not dispute that the premises never had a liquor license for the patio area. In fact, defendant alleges that plaintiff was aware of that fact, based on his testimony in the Richmond County action (see Memorandum of Law in Support at p 2), which was provided herein (see Notice of Motion, Exhibit 14).”
“Here, plaintiff’s fifth cause of action in the second amended complaint is not plead with specificity. Given the inconsistency in the prior pleadings and the arguments made herein, it is unclear what cause of action plaintiff attempts to state. To the extent that plaintiff’s fifth cause of action alleges legal malpractice or negligent misrepresentation, it is insufficiently plead. It is undisputed that plaintiff retained defendants to procure liquor licenses for the premises. Although plaintiff specifically plead the existence of that
relationship in his third cause of action for breach of fiduciary duty, the fifth cause of action is silent as to the nature of the relationship between plaintiff and defendant. It neither states that a privity-like relationship or an attorney-client relationship existed. It further fails to allege that plaintiff would have been successful in getting a liquor license for the outside patio and would not have incurred financial damages, but for defendant’s negligence. However, to the extent that the fifth cause of action alleges general negligence, affording the complaint liberal construction, plaintiff sufficiently plead the
existence of a duty, breach, causation and damages. Accordingly, that branch of defendant’s motion to dismiss plaintiff’s fifth cause of action for “negligence” is denied. ”