Opinion
7637 Index 655085/16
11-15-2018
GREENSTREET OF NEW YORK, INC., Plaintiff–Respondent, v. Lorna DAVIS, et al., Defendants, D.F. Gibson Architects, P.C., et al., Defendants–Appellants.
Byrne & O'Neill, LLP, New York (Albert Wesley McKee of counsel), for appellants. Muchmore & Associates PLLC, Brooklyn (Maximillian Travis of counsel), for respondent.
Byrne & O'Neill, LLP, New York (Albert Wesley McKee of counsel), for appellants.
Muchmore & Associates PLLC, Brooklyn (Maximillian Travis of counsel), for respondent.
Acosta, P.J., Friedman, Manzanet–Daniels, Webber, Singh, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 2, 2017, which, to the extent appealed from, denied the motion of defendants D.F. Gibson Architects, P.C. (Gibson) and Ysrael A. Seinuk, PC (Seinuk) to dismiss the cause of action alleging negligence, unanimously affirmed, without costs.
Whether characterized as professional malpractice or negligent misrepresentation, the central issue is whether plaintiff has sufficiently alleged a relationship of privity with Gibson and Seinuk, or the functional equivalent of privity, to impose a duty owed on them in relation to plaintiff (see North Star Contr. Corp. v. MTA Capital Constr. Co., 120 A.D.3d 1066, 1069, 993 N.Y.S.2d 11 [1st Dept. 2014] ; Bullmore v. Ernst & Young Cayman Is., 45 A.D.3d 461, 464, 846 N.Y.S.2d 145 [1st Dept. 2007] ).
Here, the court properly determined that the amended complaint, as amplified by the affidavit from plaintiff's president (see Wall St. Assoc. v. Brodsky, 257 A.D.2d 526, 526–527, 684 N.Y.S.2d 244 [1st Dept. 1999] ), has adequately asserted such a relationship. Plaintiff alleges that it had direct communications with Gibson and Seinuk during the course of the project; that defendants were aware that the drawings submitted were incorrect insofar as Gibson failed to reference structural insulated panels (SIPs); that Seinuk negligently advised plaintiff to back the SIPs with plywood out of concern for wind shear and failed to advise plaintiff that doing so would violate the New York City Building Code; that Gibson and Seinuk knew that plaintiff would rely on their drawings and representations; and that plaintiff reasonably relied on these representations (see Ossining Union Free School Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 425, 541 N.Y.S.2d 335, 539 N.E.2d 91 [1989] ).
We have considered defendants' remaining contentions and find them unavailing.