You are here: / / The Breach of Contract Cause of Action Which Was Based Upon Clauses Which...
, ,

The Breach of Contract Cause of Action Which Was Based Upon Clauses Which Merely Stated the Common Law Standard of Care for Professionals Was Duplicative of the Professional Malpractice Cause of Action and Should Have Been Dismissed/Proper Measure of Damages for Negligent/Defective Building Design Is the Cost of Remediation

Plaintiff hospital alleged that the seismic retrofit of one of the hospital buildings would not operate as intended and sued the architectural firm which designed the retrofit under breach of contract and professional malpractice theories.  Plaintiff prevailed on both causes of action in a non-jury trial. The Third Department determined Supreme Court should have dismissed the breach of contract cause of action because it was duplicative of the professional malpractice cause of action. The only relevant clauses in the contract held the architectural firm to the common law standard for professionals.  Breach of those clauses, therefore, duplicated the professional malpractice cause of action. The Third Department affirmed the professional malpractice verdict and the award of damages, 1.7 million, which reflected the cost of remediation:

The contract does contain two clauses regarding defendant’s performance. They provide that defendant’s “services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the [w]ork,” and “shall be provided . . . in a manner consistent with the standards of care and skill exhibited in its profession for projects of this nature, type and degree of difficulty.” These provisions simply incorporate into the contract the common-law standard of care for a professional. “Making such ordinary obligations express terms of an agreement does not remove the issue [of a violation thereof] from the realm of negligence . . ., nor can it convert a malpractice action into a breach of contract action” … . Inasmuch as a breach of contract cause of action based on the violation of these particular contract provisions would be duplicative of a professional malpractice cause of action, Supreme Court should have dismissed plaintiff’s breach of contract cause of action. * * *

We reject defendant’s contention that plaintiff’s proposed amount of damages constitutes economic waste. The proper measure of damages due to the defective design of a building is the cost to remedy the defect, unless such amount is “grossly and unfairly out of proportion to the good to be attained” by fixing the building … . The defects here were not trivial, but were substantial as to the seismic function of the building, such that plaintiff was entitled to damages in the amount necessary to remediate the defects … . Mary Imogene Bassett Hosp. v Cannon Design, Inc., 2015 NY Slip Op 03016, 3rd Dept 4-9-15

 

You might also like
Questions of Fact Whether Picnic Table Near the Edge of a Porch Was a Dangerous Condition and Whether the Condition Was Open and Obvious
Question of Fact Whether Tavern Served Visibly Intoxicated Defendant
COMPENSATION FOR CARE BY CLAIMANT’S FAMILY MEMBER MUST BE PAID TO THE CLAIMANT, NOT THE FAMILY MEMBER 3RD DEPT.
Nondomiciliary’s Presence In New York State for Part of a Day Constitutes Presence for a “Day” for Income Tax Purposes
QUESTION OF FACT WHETHER SPECTATOR PROTECTION AT A HOCKEY RINK WAS SUFFICIENT, PLAINTIFF WAS STRUCK BY A PUCK (THIRD DEPT).
A POOR-QUALITY VIDEO SHOWED THE SHOOTING AND THE SHOOTER GETTING INTO THE DRIVER’S SEAT OF THE CAR WHICH WAS STOPPED AFTER A CHASE; THERE WAS NO EVIDENCE ANY OF THE OCCUPANTS GOT OUT OF THE DRIVER SIDE OF THE CAR; TWO OF THE OCCUPANTS HAD CLOTHES SIMILAR TO THOSE WORN BY THE SHOOTER; DEFENDANT’S CONVICTION WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; BUT DEFENDANT’S CONVICTION WAS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT),
Injury to Officer Who Was Pursuing a Suspect Not an “Accident”
Comparative Negligence Not Available in Labor Law 240 (1) Action—Claimant Entitled to Partial Summary Judgment—Suspended Cable On Which Claimant Was Walking to Access Scaffolding Broke

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Application to File Late Notice of Claim Should Have Been Granted—Plaintiff... Where It Was Not Clear that Grand Jury Proceedings in Which a County Employee...