Yellin v. Zimmerman ( 2018 )

Yellin v Zimmerman (2018 NY Slip Op 04098)

Yellin v Zimmerman

2018 NY Slip Op 04098

Decided on June 7, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2018
Renwick, J.P., Richter, Webber, Kern, Moulton, JJ.

6813 154544/14

[*1]Tammi Yellin, Plaintiff-Respondent,

v

Adam Zimmerman, Defendant-Appellant.

Byrne & O'Neill, LLP, New York (Elaine C. Gangel of counsel), for appellant.

Law Office of Joel J. Ziegler, PLLC, Smithtown (Joel J. Ziegler of counsel), for respondent.

Order, Supreme Court, New York County (Nancy Bannon, J.), entered July 24, 2017, which, to the extent appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint to the extent the complaint asserts a cause of action for breach of contract, unanimously affirmed, without costs.

The court correctly determined that the first cause of action, although denominated a claim for professional malpractice, also states a cause of action for breach of contract (see generally Foley v D'Agostino, 21 AD2d 60, 65 [1st Dept 1964]).

The court also correctly found that the breach of contract cause of action is not redundant of the malpractice claim

(see Ferro Fabricators, Inc. v 1807-1811 Park Ave. Dev. Corp., 127 AD3d 479, 480 [1st Dept 2015]. The breach of contract claim is premised upon obligations distinct from those that flow from professional standards of architectural practice, and it seeks damages distinct from those sought under the dismissed malpractice claim.

The court also correctly denied summary dismissal of the breach of contract cause of action since the record presents issues of fact as to whether defendant complied with the particular terms of the contract at issue.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 7, 2018

CLERK