We had not considered the question of how a bench trial and a jury trial might differ in the use of experts.  Remembering that an expert is necessary when the experience of an ordinary trier of fact does not encompass the issues, we recently ran across Oikonomos, Inc. v Bahrenberg
2015 NY Slip Op 51300(U) [48 Misc 3d 1228(A)]  Decided on August 18, 2015  Supreme Court, Suffolk County  Pines, J. in which plaintiff does not present expert evidence at a bench trial, and instead argues that a judge has sufficient experience as a trier of fact to obviate the need for expert testimony.  The argument succeeds.

“This case arises from numerous leases, promissory notes, guarantees, and services agreements entered into between the Plaintiffs and the corporate Defendants, each of which is a not-for-profit entity. The various Plaintiffs, all for-profit corporate entities, owned by Albert and Barbara Brayson (“the Braysons”) (or, in the case of WDR Assets LLC, by the Braysons’ children) are Oikonomos, Inc. (“Oikonomos”), Stonegate Springs, LLC (“Stonegate”), Educare Systems Solutions, LLC (“Educare”), 3390 Route 112, LLC (“3390”) and WDR Assets LLC (“WDR”).

The Plaintiffs assert claims against the various lessees, promissors on notes, and guarantors of the notes and leases, all named Defendants, for breaches of their agreements. The non-profit corporate Defendants include Lake Grove at Durham, Inc. (“Lake Grove”) (which operates a school located in Connecticut), Maple Valley School, Inc (“Maple Valley”) which operates a school in Massachusetts, the Brayson Foundation Ltd. (“the Foundation”), which provided financial support to these affiliated not-for-profit schools, and Windwood Meadow Inc. (“Windwood”), which provided management services to various entities. Additionally, the Plaintiffs have sued individual Defendant, John Claude Bahrenburg (“Bahrenburg”), the Braysons’ alleged former close friend and attorney, for over a twenty year period, for legal malpractice. Plaintiffs’ contend that Bahrenburg not only represented the Braysons but, in addition, all the corporate Plaintiffs at various times and each and every named corporate Defendant. Plaintiffs also have claims against individual Defendant, Jeffrey Dryfoos (“Dryfoos”), Chairman of the Board of Defendant Windwood (2001-2012) as well as Albert Brayson’s close personal friend and college roommate, essentially for acting in concert with Bahrenburg, and utilizing their corporate positions to cause the losses that the corporate Plaintiffs have allegedly suffered.

Currently before the Court is a motion (Mot. Seq. 016) pursuant to CPLR 4401 by the Foundation, Dryfoos and Bahrenburg, made after the close of the evidence presented at trial by the Plaintiffs, for judgment as a matter of law dismissing various causes of action. The [*2]arguments in support of and in opposition to the motion are summarized below.”

“Plaintiffs argue that expert testimony regarding the malpractice claim is not necessary here because the Court, as the trier of fact, is competent to analyze and evaluate whether Bahrenburg’s conduct violated the Code of Professional Responsibility and if so, decide whether such conduct constitutes malpractice. Plaintiffs cite to case law in the Second Department holding that expert testimony is required “unless the ordinary experience of the fact-finder provides sufficient basis for judging the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care” (Northrop v Thorsen, 46 AD3d 780, 782 [2d Dept 2007]). Plaintiffs argue that Bahrenburg’s conduct in acting adversely to his client clearly falls below the standard of care set forth in the Code of Professional Responsibility.

Plaintiffs argue that the legal malpractice claim against Bahrenburg is not time-barred because of the continuous representation doctrine. Plaintiffs contend that the testimony and documents establish that Bahrenburg did legal work for Oikonomos and the Braysons at least through November 2006, despite the Release letter dated February 2, 2006. Thus, Plaintiffs contend that there is a triable issue of fact as to whether the representation giving rise to the malpractice claims ended in February 2006, in which case the malpractice claims first asserted in November 2009 would be untimely, or whether representation continued until November 2006 tolling the commencement of the three-year statute until then.”

“An action for legal malpractice requires proof of the following three elements: (1) the attorney’s failure to exercise that degree of care, skill and diligence commonly possessed by a member of the legal profession; (2) causation; and 3) actual damages (Prudential Ins. Co. of America v Dewey Ballantine, Bushby, Palmer & Wood, 170 AD2d 108 [1st Dept 1991], aff’d, 80 NY2d 377 [1992]; Gray v Wallman & Kramer, 184 AD2d 409 [1st Dept 1992]). To sustain a cause of action for legal malpractice, a party must show that an attorney failed to exercise “the ordinary reasonable skill and knowledge” commonly possessed by a member of the legal profession (Darby & Darby, P.C. v VSI Intern., Inc., 95 NY2d 308 [2000]). The New York Rules of Professional Conduct Code contain provisions bearing on malpractice by an attorney. Such rules are clearly relevant to a malpractice claim. A malpractice cause of action was held to lie where defendant attorney represented both sides of a transaction and allegedly withheld critical information from the plaintiff client (Sitar v Sitar, 50 AD3d 667 [2d Dept 2008]), and where a law firm’s divided loyalties impaired its professional judgment (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]). In addition, a lawyer may not seek, by contract or other means, to limit prospectively the attorney’s individual liability to a client for legal malpractice (New York Rules of Professional Conduct Rule 1.8(h)(1).

An action for legal malpractice is governed by a three year statute of limitations (CPLR 214[6]). The continuous treatment rule applied to medical malpractice actions has been extended to claims of attorney malpractice (Zorn v Gilbert, 8 NY3d 933 [2007]; Sommers v Cohen, 14 AD3d 691 [2d Dept 2005]).

To recover for an attorney’s malpractice, a plaintiff must show that such proximately caused the loss (Rudolf v Shayne, Dachs, Stanisi, Corker & Sauer, 8 NY3d 438 [2007]). In addition, it has been generally recognized that a plaintiff in such cases must satisfy a more demanding test than usual by proving that “but for” the defendant’s negligence, the plaintiff would not have sustained the claimed loss in the underlying transaction (Waggoner v Caruso, 14 NY3d 874 [2010]). The Court notes, however, that in Barnett v Schwartz, 47 AD3d 197 [2d Dept 2007], the Second Department held that the “but for” causation standard does not require a [*9]greater or more direct degree of causation than the “proximate cause” standard set forth in PJI 2:70; and, further, that the “but for” standard does not require a showing that the defendant’s malpractice was the sole proximate clause, rather than a substantial cause, of the plaintiff’s loss. This particular view has not yet been considered by the Court of Appeals.

Unless the ordinary experience of the fact finder provides a sufficient basis for judging the adequacy of the professional service or the attorney’s conduct fell below any standard of due care, expert testimony will be necessary to established that the attorney breached a standard of professional care and skill (Northrop v Thorsen, 46 AD3d 780 [2d Dept 2007]; Zasso v Maher, 26 AD2d 366 [2d Dept 1996]).

Here, viewing the evidence in the light most favorable to the Plaintiffs, accepting the Plaintiffs’ evidence as true, and giving the Plaintiffs every favorable inference that can be reasonably drawn therefrom, the Court finds that the Plaintiffs have set forth sufficient evidence to support a legal malpractice claim against Bahrenburg. The Plaintiffs have presented evidence of an attorney-client relationship with Bahrenburg continuing into November 2006 such that judgment as a matter of law pursuant to CPLR 4401 dismissing the legal malpractice claim as time barred is not warranted. Contrary to Bahrenburg’s contention, the Plaintiffs’ failure to put forth expert testimony is not fatal as the ordinary experience of this Court, the fact finder on this case, provides a sufficient basis for judging whether Bahrenburg’s alleged actions and omissions violated his fiduciary duties, which, as previously held, are subsumed within the legal malpractice claim. There has also been sufficient evidence submitted to allow the Court to determine whether any of the allegations against Bahrenburg constitute a violation of the Rules of Professional Conduct. Plaintiffs have also submitted evidence that they would not have entered into the transactions at issue and sustained losses had Bahrenburg acted properly. Therefore, the motion is denied as to the twenty seventh cause of action.”

Mr. San, LLC v Zucker & Kwestel, LLP  2013 NY Slip Op 08416 [112 AD3d 796]  December 18, 2013  Appellate Division, Second Department  is the very rare departure from the rule of strict privity in legal malpractice.  The exception is well known, and often quoted: ” fraud, collusion, malicious acts or other special circumstances.”  Knowing the words and seeing a successful application are two different things.  Mr. San, LLC is the very rare application of that exception.

“On a motion to dismiss pursuant to CPLR 3211 (a) (1), “dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]). In deciding a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must “accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d at 87-88).

Applying these principles, the Supreme Court properly denied those branches of the defendants’ motion which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the first cause of action, which sought to recover damages for legal malpractice. While the complaint does not allege an attorney-client relationship between the plaintiffs and the defendants, it sets forth a claim which falls within “the narrow exception of fraud, collusion, malicious acts or other special circumstances” under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity (Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1112 [2011] [internal quotation marks omitted]; see Aranki v Goldman & Assoc., LLP, 34 AD3d 510, 511-512 [2006];Griffith v Medical Quadrangle, 5 AD3d 151, 152 [2004]). Furthermore, the documentary evidence submitted by the defendants does not conclusively establish a defense to this cause of action as a matter of law (see CPLR 3211 [a] [1]).”

Accountant (or other professional) is retained to provide professional services.  On Day X the business to which the professional services are rendered “closes.”  On Day x+10 the professional returns all the papers, does the final report and “resigns.”  On which day does the three-year statute of limitations commence?

Weight v Day   2015 NY Slip Op 09093   Decided on December 9, 2015  Appellate Division,  Second Department tells us that it is not until the paperwork is complete and returned that the statute commences.

“For a number of years, the plaintiff jointly owned and operated a business known as Weight Steel Construction, Inc. (hereinafter Weight Steel), with her husband, nonparty Joseph Weight. On or about September 30, 2009, while the plaintiff and her husband were engaged in divorce proceedings, they hired the defendant Wayne Day, a certified public accountant and a partner at the defendant accounting firm, Day Seckler, LLP, to serve as trustee of Weight Steel until the divorce was final. Accordingly, Day entered into an agreement with the plaintiff and her husband, as the sole shareholders of Weight Steel, which provided, in pertinent part, that Day would “assume sole responsibility for receiving and disbursing the income” of Weight Steel, deliver copies of all such records to the plaintiff and her husband on a weekly basis, and continue acting as trustee until termination by a signed written agreement or court order. Day tendered his resignation as Weight Steel’s trustee in a letter dated February 10, 2011.

On February 10, 2014, exactly three years after Day sent his resignation letter, the plaintiff commenced this action against the defendants, alleging, inter alia, accounting malpractice, breach of fiduciary duty, fraud, and breach of contract. The plaintiff alleged, among other things, that Day failed to properly manage Weight Steel, prevent her husband from needlessly using the company’s assets for his personal gain, deposit the company’s payments, and bill its customers. The plaintiff further alleged that Day irresponsibly ran up the company’s debt, intentionally concealed its dire financial situation, and denied her access to its records and facilities. The complaint included an allegation that Weight Steel “closed” on or about August 23, 2010.

Thereafter, the defendants moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint. Among other things, they argued that the complaint was time-barred because it did not allege any errors, acts, or omissions that occurred after August 23, 2010, the date that Weight Steel allegedly closed. In addition, the defendants argued that all of the causes of action other than that alleging accounting malpractice should be dismissed as duplicative of the accounting malpractice cause of action. The Supreme Court granted the defendants’ motion to dismiss the complaint, concluding that the causes of action alleging accounting malpractice and breach of fiduciary duty were time-barred, and further concluding, in effect, that the remaining causes of action should be dismissed for failure to state a cause of action. The plaintiff appeals, and we modify.

“Contrary to the court’s determination, the defendants failed to establish that these causes of action accrued on August 23, 2010, when Weight Steel allegedly “closed.” It is undisputed that Day did not resign as trustee of Weight Steel until February 10, 2011. Further, the defendants did not establish when they delivered to the plaintiff all the pertinent documents related to their accounting work and Day’s additional duties as trustee. Based upon the defendants’ submissions, including the complaint and the agreement outlining the terms of the trusteeship, the earliest possible accrual date with respect to the claims of accounting malpractice and breach of fiduciary duty was February 10, 2011, exactly three years prior to the commencement of this action (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d at 139; McCoy v Feinman, 99 NY2d 295, 301; Ackerman v Price Waterhouse, 84 NY2d 535, 541). Thus, the defendants failed to meet their initial burden of demonstrating that those causes of action were time-barred. Accordingly, the court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss those causes of action. Moreover, contrary to the defendants’ contention, dismissal of the cause of action alleging breach of fiduciary duty is not warranted on the ground that it is duplicative of the cause of action alleging accounting malpractice (cf. Staffenberg v Fairfield Pagma Assoc., L.P., 95 AD3d 873, 874).”

In Pari Delicto, a delicious Latin phrase, is the principal that a court will not adjudicate rights between two guilty parties.  This concept arises most often in accounting negligence settings, but does rear its head from time to time in legal malpractice.  The accounting setting arises when the corporation sues its accountants, who defend by saying that someone in the corporation (a VP, and executive) participated in a fraud about which the corporation now sues.

Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP  2014 NY Slip Op 08823 [123 AD3d 901]  December 17, 2014  Appellate Division, Second Department  cites one of the few exceptions to the rule that plaintiff, who is partially or strongly involved in the underlying problem cannot sue the accountants.

“As the complaint sufficiently alleged a cognizable claim of accounting malpractice (see Bruno v Trus Joist a Weyerhaeuser Bus., 87 AD3d 670 [2011]; Kristina Denise Enters., Inc. v Arnold, [*2]41 AD3d 788 [2007]; Estate of Burke v Repetti & Co., 255 AD2d 483 [1998]), the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action. Additionally, the Supreme Court properly granted those branches of the motion which were pursuant to CPLR 3211 (a) (7) to dismiss the first and third through ninth causes of action, which sought to recover damages for negligence, fraud, breach of fiduciary duty, and unjust enrichment, since they were duplicative of the professional malpractice cause of action, as they arose from the same facts and do not allege distinct damages (see Blanco v Polanco, 116 AD3d 892 [2014]; Bruno v Trus Joist a Weyerhaeuser Bus., 87 AD3d 670 [2011]; Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 80 AD3d 573 [2011]; Stuart v Kushner, 68 AD3d 974 [2009]; Town of Wallkill v Rosenstein, 40 AD3d 972 [2007]).

The Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the accounting malpractice cause of action pursuant to CPLR 3211 (a) (1). The defendants contend that that cause of action is barred by the doctrine of in pari delicto, which “mandates that the courts will not intercede to resolve a dispute between two wrongdoers” (Kirschner v KPMG LLP, 15 NY3d 446, 464 [2010]). However, the adverse interest exception to the doctrine of in pari delicto provides that “when an agent is engaged in a scheme to defraud his principal, either for his own benefit or that of a third person, the presumption that knowledge held by the agent was disclosed to the principal fails because he cannot be presumed to have disclosed that which would expose and defeat his fraudulent purpose” (Center v Hampton Affiliates, 66 NY2d 782, 784 [1985]). Here, the documentary evidence submitted by the defendants did not conclusively foreclose the application of the adverse interest exception to the in pari delicto defense (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d at 196-199; compare Chaikovska v Ernst & Young, LLP, 78 AD3d 1661, 1662-1664 [2010]).

ss the accounting malpractice cause of action pursuant to CPLR 3211 (a) (1). The defendants contend that that cause of action is barred by the doctrine of in pari delicto, which “mandates that the courts will not intercede to resolve a dispute between two wrongdoers” (Kirschner v KPMG LLP, 15 NY3d 446, 464 [2010]). However, the adverse interest exception to the doctrine of in pari delicto provides that “when an agent is engaged in a scheme to defraud his principal, either for his own benefit or that of a third person, the presumption that knowledge held by the agent was disclosed to the principal fails because he cannot be presumed to have disclosed that which would expose and defeat his fraudulent purpose” (Center v Hampton Affiliates, 66 NY2d 782, 784 [1985]). Here, the documentary evidence submitted by the defendants did not conclusively foreclose the application of the adverse interest exception to the in pari delicto defense (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d at 196-199; compare Chaikovska v Ernst & Young, LLP, 78 AD3d 1661, 1662-1664 [2010]).”

Comer v Krolick   2015 NY Slip Op 32274(U)  December 2, 2015  Supreme Court, New York County  Docket Number: 651767/2014   Judge: Shirley Werner Kornreich is a fascinating look at the world of big investments in the banking field, and how a Wisconsin guy got roped into a huge investment that either unluckily or fraudulently went sour. We’ll look at the intersection of fraud and legal malpractice.

“Plaintiff Colin E. Comer lives and works in Milwaukee, Wisconsin. He owns and operates plaintiff Classic Auto, L.L.C. (Classic), a business that purchases and renovates classic cars. Krolick is a New York licensed attorney and a licensed securities broker. In 2004, Comer • I I f [* 1] and Krolick met when Krolick contacted Comer to purchase a classic car. Since then, and until the events giving rise to this action, they had a close personal friendship that included vacationing together and spending time with each other’s friends and family. They also provided professional services for each other without charge, described by plaintiffs as a “bartering arrangement”. For instance, Krolick assisted Comer with legal matters, such as a mortgage refinancing and pre-nuptial agreement, and Comer would not charge Krolick his usual commissions and fees for brokering classic car transactions. The instant dispute arose from an investment Comer made in a bank holding company, which was solicited by Krolick in February 20 I 0. Comer allegedly had reservations regarding the investment, but “Krolick specifically advised Comer that he would not need to worry about the financial and legal complexities of investing in a bank because Krolick was an insider, and would be acting to protect Comer’s interests as his attorney and investment advisor, as he had always done.” Complaint~ 35 (emphasis added). 1 The complaint states that Krolick advised Comer to invest in Modern Capital Holding (MCH), which would be the general partner of Modern Capital Partners (MCP). 2 Krolick and Del Giudice were principals of MCP. They also worked for defendant MCM, and allegedly solicited the subject transactions from MC M’s office.”

“Plaintiffs assert causes of action against Krolick for malpractice, fraud, breach of r fiduciary duty, negligent misrepresentation, conversion, and unjust enrichment. These claims seek redress for two sets of alleged wrongs. To begin, plaintiffs allege that Comer’s first investment of $1 million was induced by Krolick’s misrepresentations about the nature of the investment. Next, plaintiffs allege that Comer’s subsequent $2 million investment was induced by Krolick’s representation that it would be a bridge loan, not additional equity. Plaintiffs claim both investments were made as a product of legal malpractice and fraud. They contend Krolick, allegedly acting as Comer’s attorney, did not accurately portray the nature of the investments, what the moneys would be used for, or the contractual terms that would govern repayment. Plaintiffs further contend that but for these misrepresentations, they never would have invested. Krolick seeks dismissal of both the malpractice and fraud claims. He argues that he did not serve as Comer’s attorney with respect to the subject investments, that the terms governing the contracts (e.g., the merger clauses) preclude Comer’s claims of extra-contractual representations and oral agreements, and that plaintiffs suffered no proximately caused losses. On this motion to dismiss, Krolick’s arguments fail. ”

“Next, Krolick argues that plaintiffs fail to state a claim for fraud. He further argues that, at best, the malpractice and fraud claims are duplicative and plaintiffs should not be allowed to simultaneously maintain both claims. “The elements of a cause of action for fraud [are] a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages.” Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 (2009); see Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 135 (1st Dept 2014). Pursuant to CPLR 3016(b), “the circumstances constituting the wrong shall be stated in detail.” Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 491 (2008). The complaint states a claim for fraud. Simply put, plaintiffs allege that but for Krolick’s alleged misrepresentations about the nature of the investment, misrepresentations which are set forth with particularity, they would not have invested. Contrary to Krolick’s contentions, plaintiffs have adequately pleaded damages, even though they received the shares provided for in the subscription agreements. Plaintiffs, however, contend that the First Subscription Agreement was represented to be an entirely different investment and the second was represented to be a loan, not an equity investment. In suing for fraud, Comer is seeking what he thought he bargained for. To the extent plaintiffs’ damages should be discounted by the value of the shares plaintiffs received, that is an issue beyond the scope of this motion. Krolick also contends that even if plaintiffs pleaded actual reliance on his representations, the fraud claim nonetheless fails because such reliance was unreasonable as a matter of law. See Stuart Silver Assoc. v Baca Dev. Corp., 245 AD2d 96, 98-99 (1st Dept 1997) (“Where a party has the means to discover the true nature of the transaction by the exercise of ordinary intelligence, and fails to make use of those means, he cannot claim justifiable reliance on defendant’s misrepresentations”). Krolick avers that if Comer would have read the subscription agreements, he would have understood that his investment was much different than represented by Krolick. The argument fails since, according to the complaint, Comer did not read the agreements at Krolick’s urging and as a result of his trust in Krolick as his close friend and lawyer. Comer alleges he was hesitant to invest in a bank holding company because of its complexity, but Krolick assured him that the terms would be explained to him so Comer would not, on his own, have to figure out the details. He allegedly was further assured that his lawyer and advisor, Krolick, would protect the investment, and Krolick sent him separate signature pages. For Krolick to now complain, essentially, that Comer should not have listened to him, is simply not a tenable argument on a motion to dismiss. At best, it presents questions of fact, since “[t]he question of what constitutes reasonable reliance is not generally a question to be resolved as a matter oflaw on a motion to dismiss.” ACA Fin. Guar. Corp. v Goldman, Sachs & Co., 25 NY3d 1043, 1045 (2015).

It should be noted that, as Krolick observes, the line between malpractice and fraud is not clear in a case such as this. That is, Krolick’s alleged failure to accurately inform Comer of the investment terms is, as even Krolick admits, an allegation of outright fraud. However, since the elements of fraud are more exacting than malpractice (a negligence claim), that Krolick’s alleged wrongdoing may actually have been undertaken with fraudulent intent is not a reason to foreclose, on a motion to dismiss, the possibility ofrecovery on a negligence theory. See Vermont Mut. Ins. Co. v McCabe & Mack, LLP, 105 AD3d 837, 840 (2d Dept 2013) (“Where, as here, tortious conduct independent of the alleged malpractice is alleged, a motion to dismiss a cause of action as duplicative is properly denied”); see also On the Level Enterprises, Inc. v 49 E. Houston LLC, 104 AD3d 500, 501 (1st Dept 2013) (CPLR 3014 permits a party “to plead inconsistent theories of recovery”).”

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.”