In Apollo Elec., Inc. v Aman Devs. LLC 2023 NY Slip Op 33466(U)
October 5, 2023 Supreme Court, New York County Docket Number: Index No. 155250/2019 Judge Debra A. James surveys the difference between breach of contract by an architect and malpractice by an architect.

The difference can have profound effects on the statute of limitations as well as on the calculation of damages.

” As for the first cause of action sounding in breach of contract against second third-party defendant AT Architects of the second third-party complaint, this court agrees with second third-party plaintiff that his allegations therein sound in breach of contract and not professional malpractice. As in Children’s Corner Learning Ctr v A Miranda Contr. Corp (64 AD3d 318, 324 [1 st Dept 2009]), “the damages sought [by second third-party plaintiff at bar] are economic only.” Second third-party plaintiff does not seek, for example, “the cost to repair the defects or the difference in value between a properly
constructed structure and that which was in fact built”, which is the measure of damages for architectural malpractice (Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 262 [1998]). On that basis, second third party plaintiff is correct that the six-year statute of limitations for breach of contract (CPLR § 213) applies to such claim. As the second third party action was commenced on September 15, 2022, any claims against second third-party defendant that accrued before September 14, 2016, are untimely. However, this court agrees with second third party plaintiff that second third-party defendant has not irrefutably established the accrual date of
such claim, i.e., the date of completion of the actual physical work (see State v Lundin, 60 NY2d 987 [1983]). As contended by second third-party plaintiff, this court holds that the invoice dated April 24, 2017, proffered by second third party defendant, does not irrefutably establish the date on which second thirdparty defendant fulfilled its contractual obligations (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1150- 1151 [2nd Dept 2010] [invoices sent by defendant law firm to plaintiff did not constitute irrefutable documentary evidence that defeated plaintiff’s claim of breach of fiduciary duty by charge of excessive legal fees]).”