Scope of work is a term of art used by architects; it is similarly a term of art applied to architect contracts and the potential for professional malpractice claims against them.  University Ave., LLC v Simbari Design Architecture, PLLC  2019 NY Slip Op 50330(U)  Decided on March 19, 2019  Supreme Court, Cortland County  Guy, J. is a fine example.  What was the architect hired to do and what did he actually do?

”

The parties do not dispute certain material facts at issue in this summary judgment motion. Plaintiff is the owner and developer of commercial rental property located at 1344-1350 University Avenue in the City of Rochester. (Calabro Deposition at 16-17).^[FN2] Plaintiff’s principal is Christopher J. Calabro, who also owns and operates, through other LLCs, commercial and residential rental properties in at least Monroe and Cortland Counties. At the time of the events involved in this lawsuit, Defendant Simbari Design Architecture, PLLC, an architecture firm of which Defendant Thomas J. Simbari is the principal, was a tenant in Plaintiff’s University [*2]Avenue property. (Calabro Deposition at 16, 30).

In late March 2009, Syracuse Behavioral Health (SBH) expressed an interest in leasing a portion of the space in the University Avenue property. (Calabro Deposition at 311). By the end of that month, Plaintiff and Defendant had entered into an hourly agreement for Defendant to perform, on an as-needed basis, architectural services and design build-out services for the proposed SBH space. (Calabro Deposition at 381-382; 422-423). Plaintiff and Defendant both attended an initial project meeting with SBH on April 3, 2009, where it was clear that SBH needed to occupy the space, if leased, as soon as possible after October 1, 2009. (Simbari Deposition at 681-682; 696-697).

From April through November of 2009, Defendant completed floor plan sketches, preliminary drawings and revisions of those drawings relating to the project. (Simbari Deposition at 744-788, 792-793, 813-816, 821-828). Defendant sent Plaintiff and SBH an initial floor plan on April 17, 2019 and a fee estimate worksheet dated April 24, 2009, to estimate Defendant’s total costs for preparing final construction drawings. (Simbari Deposition at 657, 731, 735-736; 770-771).”

“Some of the work undertaken by Plaintiff’s contractors in advance of delivery of the construction drawings and building permit was inconsistent with the construction drawings and therefore had to be redone. (Calabro Deposition at 372-375; 379-383, 386-388, 401-406). The construction drawings also identified certain fire safety construction requirements, which Plaintiff had not anticipated. (Calabro Deposition at 331-332, 340-341; 353-354, 366-368). In an email dated January 26, 2011, Plaintiff acknowledged to Defendant that the project ultimately cost $350,000, on the low end of the estimated range originally provided by Defendant. (Calabro Deposition at 414). Plaintiff now seeks recovery of the costs of the rework and the unanticipated fire code work. (Calabro Deposition at 406).”

“”A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.” Kung v Zheng, 73 AD3d 862, 863 (2d Dept 2010). It is incumbent upon the plaintiff to present expert testimony to support allegations of malpractice, except where the alleged act of malpractice falls within the competence of a lay jury to evaluate. 530 East 89 Corp. v Unger, 43 NY2d 776, 777 (1977) (internal citations omitted).

The matter of Alvarez v Prospect Hospital is instructive for the outcome of this motion not only for the standard for summary judgment, as recited above, but also in how that standard is applied in the context of a malpractice action. In Alvarez, the defendant-physician’s motion for summary judgment on the plaintiff’s medical malpractice claim was supported by an attorney’s affirmation, hospital records, and the defendant’s deposition testimony. Alvarez, supra at 325. The Court of Appeals rejected Plaintiff’s position that a prima facie case for dismissing a malpractice claim requires an expert affidavit, holding that the “fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof rather than affidavits of fact on personal knowledge, is not fatal to the motion.” Id. (internal citations omitted).

In this case, Defendant has similarly established a prima facie case in support of his summary judgment motion on the malpractice claim through his deposition testimony and his attorney’s affirmation. The architectural services requested by Plaintiff — initially schematics and floor plans, and ultimately detailed construction drawings — were suitably performed by Defendant, as and when requested. As with Plaintiff’s contract claim, Defendant cannot be found to have failed to meet his professional responsibility by not performing services he was not contracted to do. Defendant’s professional duty is measured consistent with the scope of the services he was retained to perform. See, e.g., Greenhaven v Hutchcraft Associates, Inc., 463 N.E. 2d 283 (Ind. Ct. App. 1984); Sch. Bd. v Pierce Goodwin Alexander & Linville, 137 So.3d 1059 (Fla. 4th DCA 2014). In opposition, Plaintiff has offered only conclusory allegations, unsupported by a statement of expert opinion that Defendant did not fulfill his professional duty, required to support a finding of malpractice. Alvarez, supra, at 327. Defendant’s motion for summary judgment dismissing the malpractice claim is granted.

Plaintiff’s complaint also alleges a claim for negligence on the part of Defendant arising from the identical facts alleged to support the breach of contract and malpractice claims addressed above. The negligence claim, grounded on the same facts, is duplicative of the other claims and is also dismissed. See Garten v Shearman & Sterling LLP, 52 AD3d 207, 208 (1st Dept 2008).”

On Lam v Arnold Montag Architect  2019 NY Slip Op 30712(U)  March 13, 2019 Supreme Court, Kings County Docket Number: 522413/2017 Judge: Pamela L. Fisher discusses the relationship between plaintiffs and sub-contractors of their architects and other professionals, and the requirement of privity in a breach of contract case.

“On March 4, 2013, BTE entered into a contract with nonparty JNE Development (JNE) to provide architectural and engineering services for the construction of a two-family duplex located at 1582A Pacific Street in Brooklyn (property). Subsequently, on May 7, 2014, Montag Architects entered into a written agreement with nonparties Yaniv Zohar and GHIB, LLC (collectively, developers) to perform services in connection with the Preparation of Architectural Plans & Expediting to Supercede Previous Applicant” for the property (see Montag Architects moving papers, exhibit C, affidavit of Arnold Montag [Montag affidavit] at ¶ 2 and exhibit C-1, Montag Architects contract with the nonparty developers at 1).

In November 2014, plaintiffs purchased the real property. Plaintiffs contend that the purchased property has numerous design and construction defects. Plaintiffs further contend that the work performed by defendants BTE and later Montag Architects was defective, and, as a result of BTE’s and Montag Architects’ negligence and malpractice, plaintiffs have incurred $2,000,000 damages.”

“Based on the contracts submitted, Montag Architects and BTE have established that the plaintiffs were not in privity of contract with either defendant. However, plaintiffs do not even allege that they were in contract with either Montag Architects or BTE. Instead, plaintiffs allege that they are intended beneficiaries under the agreement between Montag Architects and the developers. To establish that they were intended third-party beneficiaries, plaintiffs must establish

“(1) the existence of a valid and binding contract between other
parties, (2) that the contract was intended for his/her benefit and
(3) that the benefit to him/her is sufficiently immediate, rather
than incidental, to indicate the assumption by the contracting
parties of a duty to compensate him if the benefit is
lost” (State of California Public Employees’ Retirement System v Sherman
& Sterling, 95 NY2d 427, 435 [2000] ; Burns Jackson Miller
Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983];Cahill
v Lazarski,.226 AD2d 572, 573 [2d Dept 1996]).

“Under this analysis, a professional may be held liable for negligence or malpractice even when they are not retained by plaintiff if a relationship exists between the parties that is so close as to approach privity (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425 [I989]). To establish such a relationship, there must be a showing that (1) the professional was aware that their work would be used for a particular purpose, (2) upon which a known party was intended to rely, and (3) that there was some conduct on the part of the professional linking them to the plaintiff (see Caprer v Nussbaum, 36 AD3d 176, 196 [2d Dept, 2006])”

“Although plaintiffs allege that they are intended beneficiaries, they fail to allege facts sufficient to establish a relationship approaching privity. Plaintiffs were neither parties to, nor express third-party beneficiaries of, either contract at issue. In fact, the contract between Montag Architects and the nonparty developers specifically excludes the creation of a contractual relationship with third parties (see Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704, 710 [2018]; Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 44 [1985]). Plaintiffs rely on a telephone call conducted with defendant Montag; however this conversation alone is insufficient to establish a relationship approaching privity”

Attorney billing is the center of the attorney world, and the greatest part of attorney-client litigation arises from or concerns attorney billing.  Ledyard v Bical  2019 NY Slip Op 30739(U)  March 20, 2019 Supreme Court, New York County  Docket Number: 150470/2018  Judge: Arthur F. Engoron is an excellent example.  Arrested, indicted and shown the evidence by the EDNY, plaintiff pled guilty.  His co-defendant, charged with a  slightly lesser series of crimes went to trial and was acquitted.  This fact was the linchpin of the counterclaim against Ledyard.  Supreme Court agreed with Ledyard that it had an account stated, and all else in the case fell in line.

“This consolidated action arises from the criminal trial and legal defense of Lilahar Bical (“Bical”). Bical was a franchised dealer for General Motors Corporation operating under the name of “Kristal Auto Mall.” Bical and a co-defendant, Darmin Bachu (“Bachu”), were indicted by the United States District Court for the Eastern District of New York (hereafter “U.S. Attorney’s Office”) and charged with mail and wire fraud arising out of Bical’s purchase of land in Brooklyn to build a new  dealership complex. In November of 2016, Bical engaged Carter Ledyard & Milburn LLP (“CLM”) to replace his then-current counsel. CLM alleges, and Bical concedes, that the FBI possessed wiretap recordings that were used by the FBI in its prosecution and plea deal negotiations with Bical. In October 2017, Bical entered a guilty plea pursuant to a negotiated plea agreement with the U.S. Attorney’s Office. Bical had been charged as the alleged perpetrator of the scheme. Bachu had been charged with aiding and abetting the scheme.  Bachu elected to take his case to trial, where he was acquitted. Bical then, unsuccessfully, sought to withdraw his guilty plea, citing ineffective assistance of counsel. ”

“CLM is entitled to judgment in the amount of $258,394.67 in legal fees on a theory of account
stated. “[W]here an account is rendered showing a balance, the party receiving it must, within a
reasonable time, examine it and object, if he disputes its correctness. If he omits to do so, he will
be deemed by his silence to have acquiesced, and will be bound by it as an account stated, unless
fraud, mistake or other equitable considerations are shown.” Shaw v Silver, 95 AD3d 416, 416
(1st Dep’t 2012). CLM has met its prima facie burden by providing evidence that it sent to Bical
regular, detailed invoices for the legal services for which CLM now seeks to recover. The partial
payments by Bical in the amount of over $450,000.00 over the life of CLM’s representation of
Bical further evidences CLM’s entitlement to payment. IQ_, Bical’s conclusory and untimely
letter by his new attorney, dated December 13. 2007. that states “‘Mr. Bical disputes each and
every invoice you have sent his way” is insufficient to raise a triable issue as to whether CLM’s
statements of account were in fact disputed. A& W Egg Co. v Tufo’s Wholesale Dairy, Inc., 169
AD3d 616 (1st Dep’t 2019). For an objection to rebut sufficiently a prima facia entitlement to an
account stated, it must raise a complaint to a specific amount or invoice. It is not enough, at the
11th hour, and after having partially paid invoices for over a year, to state retroactively that you
object to every invoice that was ever sent. Schulte Roth & Zabel. LLP v Kassover, 80 AD3d
500, 501 (1st Dep’t 2011). “

In a general sense, the failure to perfect is a failure to follow up.  The attorneys did some work, but then failed to sew up the final product.  In A & L Vil. Mkt., Inc. v 344 Vil., Inc. 2019 NY Slip Op 02304 Decided on March 27, 2019 Appellate Division, Second Department it was the not-altogether uncommon failure to perfect the UCC-1 forms, which would have set up a lien in favor of the client.  Others got there first, and all was lost in the sale of a grocery story.

“The defendant Frank D’Errico of the defendant law firm, D’Errico Dreeben, LLP (hereinafter together the D’Errico defendants), represented the plaintiff in connection with the sale of its supermarket business to the defendant 344 Village, Inc. (hereinafter the buyer), for the sum of $800,000. To satisfy the purchase price, the buyer executed a promissory note in favor of the plaintiff in the amount of $500,000, and was to pay the balance at closing. In connection with the sale, the plaintiff and the buyer entered into a security agreement granting the plaintiff a security interest in certain equipment listed in the “Schedule” set forth therein (hereinafter the equipment). The buyer also executed a second promissory note in favor of the plaintiff in the amount of $200,000 in connection with the sale of the plaintiff’s “dairy, frozen food, meat and produce inventory” (hereinafter the inventory). The buyer allegedly defaulted under the promissory notes by failing to pay the amounts due to the plaintiff beginning in September 2009. In December 2010, the buyer abandoned the supermarket.

In May 2011, the plaintiff commenced this action against, among others, the D’Errico defendants, alleging, inter alia, legal malpractice based on the D’Errico defendants’ failure to perfect the plaintiff’s security interest in the equipment and inventory by filing a UCC-1 financing statement. The plaintiff alleged that as a result of the D’Errico defendants’ negligence, a third party gained a superior security interest “against the collateral identified in the security agreement.” The D’Errico defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that their alleged negligence in failing to file the UCC-1 financing statement did not proximately cause the plaintiff’s alleged damages. The Supreme Court denied the D’Errico defendants’ motion, and the D’Errico defendants appeal.”

“Here, the D’Errico defendants do not dispute that they had an attorney-client relationship with the plaintiff and that they failed to perfect the plaintiff’s security interest in the equipment and inventory. Moreover, we agree with the Supreme Court’s determination that triable issues of fact existed with respect to whether the plaintiff sustained damages proximately caused by the D’Errico defendants’ alleged malpractice (see Portilla v Law Offs. of Arcia & Flanagan, 125 AD3d 956, 957; Blanco v Polanco, 116 AD3d 892, 895). Accordingly, we agree with the court’s denial of the D’Errico defendants’ motion for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them.”

Continuous representation tolls the statute of limitations, and requires actual work, a mutual understanding between client and attorney of the need for the actual work along with a mutual relationship of trust and confidence.  In RJR Mech. Inc. v Ruvoldt  2019 NY Slip Op 01844
Decided on March 14, 2019 Appellate Division, First Department some of that was missing.

“The statute of limitations on a cause of action for legal malpractice is three years (see CPLR 214[6]). Contrary to plaintiff’s assertions, the claim was not tolled by the continuous representation doctrine. Generally, tolling under the continuous representation doctrine “end[s] once the client is informed or otherwise put on notice of the attorney’s withdrawal from representation” (Shumsky v Eisenstein, 96 NY2d 164, 171 [2001]).

Moreover, there was not a “mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy v Feinman, 99 NY2d 295, 306 [2002]).”