Brushton-Moira Cent. School Dist. v. Alliance Wall Corp., BRUSHTON-MOIRA

• Decision Date: 15 July 1993
• Docket Number: BRUSHTON-MOIRA
• Parties: , 84 Ed. Law Rep. 810 CENTRAL SCHOOL DISTRICT, Appellant, v. ALLIANCE WALL CORPORATION et al., Defendants, and Fred H. Thomas Associates P.C., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 511

600 N.Y.S.2d 511

195 A.D.2d 801, 84 Ed. Law Rep. 810

BRUSHTON-MOIRA CENTRAL SCHOOL DISTRICT, Appellant, v. ALLIANCE WALL CORPORATION et al., Defendants, and Fred H. Thomas Associates P.C., Respondent.

Supreme Court, Appellate Division,

Third Department.

July 15, 1993.

Hodgson, Russ, Andrews, Woods & Goodyear (Richard L. Weisz, of counsel), Albany, for appellant.

Sugarman, Wallace, Manheim & Schoenwald (Timothy J. Perry, of counsel), Syracuse, for respondent.

Before: WEISS, P.J., and LEVINE, MERCURE, MAHONEY and CASEY, JJ.

CASEY, Justice.

Appeal from a judgment of the Supreme Court (Duskas, J.), entered March 2, 1992 in Franklin County, upon a decision of the court in favor of defendant Fred H. Thomas Associates P.C.

This action arose out of the failure of certain insulated panels that were installed during the renovation of plaintiff's high school building. The panels replaced some of the windows in the building's exterior curtain walls. Defendant Fred H. Thomas Associates P.C. (hereinafter defendant), the firm hired by plaintiff to perform architectural services in connection with the renovation project, recommended use of the particular panels. Plaintiff's complaint alleges professional malpractice and breach of contract causes of action against defendant. Also named as defendants in the action were the manufacturers of the panels and the contractor who installed them, but plaintiff settled with these two parties during the nonjury trial, which then continued against defendant alone. At the close of the proof, Supreme Court concluded that plaintiff's malpractice claim failed to state a cause of action because plaintiff sought only economic damages, which are recoverable under the breach of contract cause of action. As to the latter claim, the court concluded that plaintiff had failed to establish a prima facie case because defendant had satisfied its contractual obligation to obtain an express warranty from the manufacturer of the panels. Plaintiff appeals from the judgment entered on Supreme Court's decision.

When the rights and obligations of an owner and an architect arise out of their contractual relationship, the owner can sue in contract or in tort and the scope of evidence admissible on the issue of liability under either theory is the same (see, Sears, Roebuck & Co. v. Enco Assocs., 43 N.Y.2d 389, 396-397, 401 N.Y.S.2d 767, 372 N.E.2d 555). The only differences concern the applicable Statute of Limitations and the scope of the damages that are recoverable (see, id.). It follows, therefore, that when, as here, the owner seeks to recover only damages which are properly recoverable in a contract action, the owner is not aggrieved by an order which effectively requires that the action proceed under the contract theory only (see, Municipal Housing Auth. of City of Schenectady v. Crozier Philippi Assocs., 190 A.D.2d 893, 593 N.Y.S.2d 347). Accordingly, we see no reversible error in Supreme Court's dismissal of plaintiff's malpractice cause of action.

As to the breach of contract cause of action, we conclude that Supreme Court erred in limiting its inquiry to whether defendant breached a particular term of the contract. In addition to the evidence admissible in a normal breach of contract action, the plaintiff owner is permitted to establish the architect's breach of contract by introducing evidence, including expert testimony, to show that the architect failed to use due and reasonable care in the performance of the architect's contractual obligations or that the architect's performance fell short of the applicable professional standards (see, Sears, Roebuck & Co. v. Enco Assocs., supra, 43 N.Y.2d at 396, 401 N.Y.S.2d 767, 372 N.E.2d 555).

Plaintiff offered the testimony of a licensed engineer, and as an alternative ground for affirmance defendant contends that the expert was not qualified to render an opinion concerning the applicable standard of care for an architect. The expert testified that he had a Bachelor's degree...