Architect malpractice cases follow some of the rule of legal malpractice.  One such rule is the inability to obtain damages on duplicitive claims of breach of contract and professional negligence.  Mary Imogene Bassett Hosp. v Cannon Design, Inc.  2015 NY Slip Op 03016 [127 AD3d  1377] April 9, 2015  Appellate Division, Third Department illustrates this issue.

“Plaintiff operates a hospital in Otsego County. Defendant is an architectural and design firm providing, among other things, structural design services. In 2002, the parties entered into a contract for architectural services including, as relevant here, a seismic retrofit of one of plaintiff’s hospital buildings.^[FN1] Defendant, with input and approval from plaintiff, designed the retrofit using four steel plate shear walls to be installed during phase one of construction. After defendant built three of the shear walls as part of phase one, and the parties decided to defer the fourth shear wall to phase two due to interference caused by electrical systems that were scheduled to be replaced in phase two, plaintiff terminated its relationship with defendant under the contract. Plaintiff commenced this action alleging breach of contract and professional malpractice arising from [*2]defendant’s allegedly defective design of the seismic retrofit.^[FN2]After a nonjury trial, Supreme Court determined that defendant breached the contract and committed professional malpractice, and awarded plaintiff damages of approximately $1.7 million plus prejudgment interest. Defendant appeals.

Supreme Court should have dismissed the breach of contract cause of action. In an appeal from a judgment issued after a nonjury trial, this Court “independently review[s] the weight of the evidence . . . and, while according appropriate deference to the trial judge’s credibility assessments and factual findings, grant[s] the judgment warranted by the record” (Nationstar Mtge., LLC v Davidson, 116 AD3d 1294, 1295 [2014], lv denied 24 NY3d 905 [2014]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983];but see Thoreson v Penthouse Intl., 80 NY2d 490 [1992]). In construing the parties’ contract, we must enforce the document according to its terms if the writing is clear and complete (see Consedine v Portville Cent. School Dist., 12 NY3d 286, 293 [2009]; Monticello Raceway Mgt., Inc. v Concord Assoc. L.P., 104 AD3d 1114, 1116 [2013]). Courts determine as a matter of law whether a contract is ambiguous, and extrinsic or parol evidence may not be considered absent an ambiguity (see Consedine v Portville Cent. School Dist., 12 NY3d at 293; Monticello Raceway Mgt., Inc. v Concord Assoc. L.P., 104 AD3d at 1116; City of Plattsburgh v Borner, 38 AD3d 1047, 1048 [2007]). Plaintiff contended, and Supreme Court found, that defendant breached the contract by failing to meet the requirements of the 2000 International Building Code (hereinafter IBC) for the seismic retrofit design. While defendant and several of its witnesses conceded that everyone involved considered the 2000 IBC to be the agreed-upon design criteria, the IBC is not mentioned in the contract itself and the contract prohibits any oral modifications.^[FN3] The absence of design criteria does not create an ambiguity (see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]). Thus, we cannot read compliance with the 2000 IBC into the contract, and defendant did not breach the unambiguous contract by failing to comply with the standards in that code.

The contract does contain two clauses regarding defendant’s performance. They provide that defendant’s “services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the [w]ork,” and “shall be provided . . . in a manner consistent with the standards of care and skill exhibited in its profession for projects of this nature, type and degree of difficulty.” These provisions simply incorporate into the contract the common-law standard of care for a professional. “Making such ordinary obligations express terms of an agreement does not remove the issue [of a violation thereof] from the realm of negligence . . . , nor can it convert a malpractice action into a breach of contract action” (Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 542-543 [2004]). Inasmuch as a breach of contract cause of action based on the violation of these particular contract provisions would be duplicative of a professional malpractice cause of action, Supreme Court should have dismissed plaintiff’s breach of contract cause of action.”