Cortland Apts., LLC v Simbari Design Architecture, PLLC  2019 NY Slip Op 50331(U)
Decided on March 19, 2019 Supreme Court, Cortland County Guy, J. is a companion case to Universe Ave. LLC v. Simbari Design Architecture PLLC and raises an interesting question:  When a professional opines that work conforms to a statute is it negligence when the governmental authority charged with enforcing the statute offers a novel interpretation that upsets the prior understanding and determines that the work does not conform to the statue?

Here, the architect opined (placed a seal on the drawings confirming that they conformed to the building and zoning laws) and the City of Cortland then dithered over whether a variance was necessary.  First no, then yes, and then a court stepped in and found that although in the past no variance was required, now it was.

“Based on the undisputed facts, it is clear the City of Cortland historically interpreted its zoning code to not require variances for projects like the ones at issue in this case. That historic interpretation went into flux as these projects developed. The City indicated it would require a variance for the proposed work at 5 Monroe Heights, then reversed that position. Defendant submitted sealed drawings for the projects at both properties in May 2011; the City issued building permits for both projects. The City then issued stop work orders for the projects, leading to Plaintiff’s appeal and Article 78 proceeding that resulted in judicial interpretation of the code. The Zoning Board of Appeals eventually denied the requests for variances on both projects, requiring Plaintiff to undo construction he had already completed.

Plaintiff submitted the affidavit of Thomas A. Zimmerman, a licensed architect with more than forty years of experience in the field. Zimmerman opined that by affixing the seal to the construction drawings for both projects, Defendant represented that the drawings confirmed to “all applicable codes.” According to Zimmerman, Defendant, “in the exercise of due care in performing their professional duties, should have discovered, recognized, and advised their clients [on the code issue] well in advance of their preparation and sealing of construction drawings.” (Zimmerman Affidavit, paragraph 31).

Zimmerman stops short of indicating whether the professional standard of care required an architect in Defendant’s position to certify his drawings confirmed with applicable codes as written or applicable codes as interpreted by the local authorities. Neither party has addressed this open question in his respective papers. The Court finds that it is not a question that falls within the competence of a lay factfinder to evaluate or for the Court to ultimately decide on this summary judgment motion. See Unger, supra at 777; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 127 AD3d 1377 (3d Dept 2015) (bench trial on issue of common law architectural standard of professional care, with expert testimony from both plaintiff and defendant); Town of [*7]Kinderhook v Vona, 136 AD3d 1202 (3d Dept 2016) (summary judgment in accounting malpractice case not granted where plaintiff and defendant both submitted expert affidavits) .

The Court finds Defendant met his initial burden for summary judgment on the professional malpractice claim, but granting all reasonable inferences in Plaintiff’s favor, Plaintiff has submitted sufficient proof in admissible form to establish the existence of material fact issues, requiring the denial of summary judgment.

Plaintiff’s negligence and negligent misrepresentation claims rely on the same set of facts as the contract and professional malpractice claims. Both claims are dismissed as duplicative of the other claims. See Garten v Shearman & Sterling LLP, 52 AD3d 207, 208 (1st Dept 2008).”