Widett v. U.S. Fidelity and Guar. Co.

• Citation: 815 F.2d 885
• Decision Date: 09 April 1987
• Docket Number: D,No. 595,595
• Parties: Irving WIDETT, Co-Assignee for the Benefit of Creditors of B.W. Construction Co., Inc., Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Reimann-Buechner Partnership, and County of Monroe, New York, Defendants-Appellees. ocket 86-7776.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 885

815 F.2d 885

Irving WIDETT, Co-Assignee for the Benefit of Creditors of B.W. Construction Co., Inc., Plaintiff-Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY Reimann-Buechner Partnership, and County of Monroe, New York, Defendants-Appellees.

No. 595, Docket 86-7776.

United States Court of Appeals Second Circuit.

Argued Dec. 17, 1986.

Decided April 9, 1987.

Paul M. Lane, Boston, Mass. (Widett, Glazier & McCarthy, Boston, Mass., of counsel), for plaintiff-appellant.

Dennis R. McCoy, Rochester, N.Y., (Saperston & Day, Rochester, N.Y., of counsel), for defendant-appellee Reimann-Buechner Partnership.

Before MESKILL, KEARSE and MAHONEY, ^* Circuit Judges.

MESKILL, Circuit Judge:

Irving Widett, co-assignee for the benefit of creditors of B.W. Construction Co., Inc. (B.W.), appeals from a judgment following an order of the United States District Court for the Western District of New York, Telesca, J., granting summary judgment to defendant-appellee Reimann-Buechner Partnership (R-B) and dismissing Count III of the complaint, which pertains to its claims against R-B. B.W., a subcontractor, alleged that R-B, a landscape architectural firm employed by the County of Monroe (County), negligently prepared site plans on which B.W. relied, causing B.W. to sustain losses in the amount of $105,000. Judge Telesca held that New York law does not permit a negligence action against an architect absent a contractual relationship or a relationship approaching that of privity. We affirm.

BACKGROUND

This controversy arises out of the construction of Greece Canal Park, which is located in the town of Greece, New York, and is administered by the County. On November 5, 1981, the County entered into a contract with R-B for the preparation of plans and specifications to be used in the construction of Greece Canal Park. The contract also provided that R-B was to conduct casual inspections of the construction site to ensure compliance with its plans. The County retained primary responsibility for supervision of the work, providing a full time Clerk of the Works to manage the project site. R-B completed its first set of plans on June 23, 1982, based on topographical information supplied by the County.

On October 19, 1982, the County entered into a general construction contract with R.W. Scaccia & Sons Contractors, Inc. (Scaccia) who in turn signed a subcontract with B.W. to perform grading work required by the site plans. The subcontract provided that no additional work was to be performed except under written order from Scaccia. The subcontract also provided that all "fill" material was available on site and that no additional material for grading would be necessary to complete the project.

B.W. immediately surveyed the project site and discovered that elevations appearing on R-B's site plans were one to one and one-half feet higher than the elevations obtained from its own survey. After B.W. indicated to Scaccia and the County that additional fill would be required to correct the error, the County requested R-B to revise the grading plans. R-B complied with this request and developed a new set of plans. As work progressed, however, it became evident that the necessary fill could not be obtained from the "cuts" specified in R-B's revised plans. At this point, B.W. requested a work change order permitting B.W. to transport additional fill to the job site at the County's expense. Both Scaccia and the County refused to grant the order, warning B.W. that it would be ordered off the job unless it complied with the subcontract. B.W. chose to continue work under protest and hauled additional fill at its own expense. B.W. left the site shortly after Scaccia's bankruptcy in December 1983.

This action was commenced in the district court by plaintiff, as the co-assignee for the creditors of B.W., against Scaccia, United States Fidelity & Guaranty Company (who provided performance bonds on behalf of Scaccia), the County and R-B, alleging that defendants were liable for the increased costs B.W. incurred in completing the project. Judge Telesca granted defendants' motions for summary judgment and dismissed the complaint. B.W. appeals from only the dismissal of Count III of the complaint, which pertains to its claims against R-B.

DISCUSSION

In this diversity action, the substantive law of New York applies to a tort claim arising out of construction work performed in New York state. O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842 (2d Cir.1984). B.W. alleges that R-B is liable in negligence for preparing erroneous site plans on which B.W. relied to its detriment. It is well settled in New York, however, that professionals are not liable either in tort or contract absent privity. Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931). It is equally clear that no contractual relationship existed between B.W. and R-B in this case. B.W. argues, however, that the New York Court of Appeals in White v. Guarente, 43 N.Y.2d 356, 401 N.Y.S.2d 474, 372 N.E.2d 315 (1977), relaxed the Ultramares requirement of privity to a sufficient degree to permit its present suit against R-B. We do not agree.

In White, the Court of Appeals permitted a group of limited partners to bring an action individually against an accountant for the negligent preparation of financial statements. The limited partnership had retained the accountant to perform auditing and tax return...