Opinion
2014-02-19
Cesare PERFETTO, et al., appellants, v. CEA ENGINEERS, P.C., et al., respondents (and a third-party action).
The Deiorio Law Group, PLLC, Rye Brook, N.Y. (Howard B. Cohen of counsel), for appellants. Gibbons P.C., New York, N.Y. (Phillip W. Crawford and Robert D. Brown, Jr., of counsel), for respondents.
The Deiorio Law Group, PLLC, Rye Brook, N.Y. (Howard B. Cohen of counsel), for appellants. Gibbons P.C., New York, N.Y. (Phillip W. Crawford and Robert D. Brown, Jr., of counsel), for respondents.
In an action, inter alia, to recover damages for negligent misrepresentation, negligence, professional malpractice, and breach of contract, the plaintiffs appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated April 20, 2012, as granted those branches of the defendants' motion which were for summary judgment dismissing the causes of action to recover damages for negligent misrepresentation, negligence, professional malpractice, and breach of contract.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court did not err in granting that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for negligent misrepresentation. The defendants established, prima facie, that they lacked privity of contract with the plaintiffs, and had no special relationship with the plaintiffs which approached privity. The plaintiffs failed to raise a triable issue of fact in opposition ( see Ramsarup v. Rutgers Cas. Ins. Co., 98 A.D.3d 494, 496, 949 N.Y.S.2d 436).
The Supreme Court also did not err in granting summary judgment dismissing the causes of action alleging negligence and professional malpractice. Like a cause of action alleging negligent misrepresentation, a viable cause of action alleging professional negligence or malpractice requires that the underlying relationship between the parties be one of privity of contract, or that the bond between them be so close as to be the functional equivalent of privity ( see Ossining Union Free School Dist. v. Anderson La Rocca Anderson, 73 N.Y.2d 417, 424, 541 N.Y.S.2d 335, 539 N.E.2d 91;Bullmore v. Ernst & Young Cayman Is., 45 A.D.3d 461, 464, 846 N.Y.S.2d 145;Tycon Tower I Inv. Ltd. Partnership v. Burgee Architects, 234 A.D.2d 748, 749, 651 N.Y.S.2d 637;Tambrands, Inc. v. Lockwood Greene Engrs., 178 A.D.2d 406, 408, 576 N.Y.S.2d 883). Here, the defendants established, prima facie, that no such relationship existed between the parties. The plaintiffs failed to raise a triable issue of fact in opposition.
Finally, the Supreme Court did not err in granting summary judgment dismissing the cause of action alleging breach of contract. The defendants demonstrated, prima facie, that the plaintiff was neither a party to, nor a third-party beneficiary of, the contract at issue ( see Mendelsohn v. Ferber, 73 A.D.3d 1139, 1140, 903 N.Y.S.2d 427). The only parties to the contract at issue were the defendants and the third-party defendant Leewood Real Estate Group, and no intent to benefit the plaintiffs is apparent from the face of the contract ( see East Coast Athletic Club, Inc. v. Chicago Tit. Ins. Co., 39 A.D.3d 461, 463, 833 N.Y.S.2d 585). The plaintiffs failed to raise a triable issue of fact in opposition. RIVERA, J.P., DICKERSON, LEVENTHAL and HALL, JJ., concur.