Ossining Union Free School Dist. v. Anderson LaRocca Anderson

• Decision Date: 07 December 1987
• Citation: 135 A.D.2d 518,521 N.Y.S.2d 747
• Parties: , 43 Ed. Law Rep. 333 OSSINING UNION FREE SCHOOL DISTRICT, Appellant, v. Anderson LaRocca ANDERSON, et al., Defendants, Thune Associates Consulting Engineers, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 747

521 N.Y.S.2d 747

135 A.D.2d 518, 43 Ed. Law Rep. 333

OSSINING UNION FREE SCHOOL DISTRICT, Appellant, v. Anderson LaRocca ANDERSON, et al., Defendants Thune Associates Consulting Engineers, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Dec. 7, 1987.

Congdon, Flaherty, O'Callaghan, Reid & Van der Waag, P.C., Garden City (Robert F. Van der Waag and Alan E. Congdon, of counsel), for appellant.

Shea & Gould, New York City (James E. Frankel, Kenneth H. Lazaruk, Charles R. Pierce, Jr., and Leon D. Lazer, of counsel), for respondent Thune Associates Consulting Engineers.

Rivkin, Radler, Dunne & Bayh, Uniondale (Frank L. Amoroso, David P. Franks and Rhonda S. Kahan, of counsel), for respondent Geiger Associates, P.C.

Before MANGANO, J.P., and EIBER, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for negligence and professional malpractice, the plaintiff appeals (1) from an order of the Supreme Court, Westchester County (Dachenhausen, J.), entered December 10, 1985, which granted the motion and cross motion respectively, of the defendants Thune Associates Consulting Engineers and Geiger Associates, P.C. to dismiss the complaint insofar as it is asserted against them pursuant to CPLR 3211(a)(7), and (2) from the judgment of the same court, entered January 30, 1986, thereon.

ORDERED that the appeal from the order entered December 10, 1985, is dismissed, without costs or disbursements; and it is further,

ORDERED that the judgment is affirmed, without costs or disbursements.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1] ).

The defendants Thune Associates Consulting Engineers (hereinafter Thune) and Geiger Associates, P.C. (hereinafter Geiger), are consulting engineers who were retained by the plaintiff's firm of architects, the defendant Anderson LaRocca Anderson (hereinafter ALA), to assist with the structural evaluation of a building owned and controlled by the plaintiff school district, viz., the Ossining High School Annex (hereinafter the Annex). Both Thune and Geiger advised ALA by way of reports, which were subsequently forwarded to the plaintiff, that the Annex had some structural problems and should not be used until corrective measures were taken.

In its complaint, the plaintiff essentially alleged, inter alia, that Thune and Geiger were guilty of negligence and professional malpractice in determining that the Annex was structurally unsound. Damages were claimed to have accrued by virtue of the cost to the plaintiff of closing down the Annex and relocating the students elsewhere. Specifically, the complaint alleged that (1) Thune and Geiger were retained by the plaintiff's architects for the specific purpose of performing engineering tests on the Annex, (2) Thune and Geiger performed these tests, advised the plaintiff "directly, or through" the defendant ALA of the results and recommended the closing of the Annex for reasons of structural unsoundness, and (3) Thune and Geiger knew or should have known that the plaintiff would rely upon the information and professional advice provided by them.

By motion and cross motion, respectively, Thune and Geiger moved, pursuant to CPLR 3211(a)(7), to dismiss the complaint insofar as asserted against them on the ground that it failed to state a cause of action as to them. Thune and Geiger argued that (1) there was no contractual privity between them and the plaintiff, and (2) neither a negligence nor a professional malpractice action could therefore be asserted against them by the plaintiff.

Special Term granted the motion and cross motion, stating:

"The complaint fails to allege and, in fact, concedes that there was no contractual relationship with the moving defendants. In addition, no third-party beneficiary relationship existed between the parties. Thus, the complaint fails to set forth a valid cause of action".

We agree with the determination of Special Term.

It is a long-standing general rule, that recovery will not be granted to a third person for pecuniary loss arising from the negligent representations of a professional with whom he or she has had no contractual relationship (Ultramares v. Touche, 255 N.Y. 170, 174 N.E. 441; Calamari v. Grace, 98 A.D.2d 74, 469 N.Y.S.2d 942).

In Credit Alliance Corp. v. Andersen & Co., 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110, mot. to amend remittitur granted 66 N.Y.2d 812, 498 N.Y.S.2d 362, 489 N.E.2d 249, and its companion case European Am. Bank v. Strauhs & Kaye, 65 N.Y.2d 536, 493 N.Y.S.2d 435, 483 N.E.2d 110, decided in July 1985 the Court of Appeals addressed the issue as to "whether an accountant may be held liable, absent privity of contract, to a party who relies to his detriment upon a...