| Perfetto v CEA Engrs., P.C. |
| 2014 NY Slip Op 01155 [114 AD3d 835] |
| February 19, 2014 |
| Appellate Division, Second Department |
| Cesare Perfetto et al., Appellants, v CEAEngineers, P.C., et al., Respondents. (And a Third-PartyAction.) |
—[*1] Gibbons P.C., New York, N.Y. (Phillip W. Crawford and Robert D. Brown, Jr., ofcounsel), for respondents.
In an action, inter alia, to recover damages for negligent misrepresentation,negligence, professional malpractice, and breach of contract, the plaintiffs appeal, aslimited by their notice of appeal and brief, from so much of an order of the SupremeCourt, Richmond County (Minardo, J.), dated April 20, 2012, as granted those branchesof the defendants' motion which were for summary judgment dismissing the causes ofaction to recover damages for negligent misrepresentation, negligence, professionalmalpractice, and breach of contract.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court did not err in granting that branch of the defendants' motionwhich was for summary judgment dismissing the cause of action to recover damages fornegligent misrepresentation. The defendants established, prima facie, that they lackedprivity of contract with the plaintiffs, and had no special relationship with the plaintiffswhich approached privity. The plaintiffs failed to raise a triable issue of fact inopposition (see Ramsarup vRutgers Cas. Ins. Co., 98 AD3d 494, 496 [2012]).
The Supreme Court also did not err in granting summary judgment dismissing thecauses of action alleging negligence and professional malpractice. Like a cause of actionalleging negligent misrepresentation, a viable cause of action alleging professionalnegligence or malpractice requires that the underlying relationship between the parties beone of privity of contract, or that the bond between them be so close as to be thefunctional equivalent of privity (see Ossining Union Free School Dist. v AndersonLaRocca Anderson, 73 NY2d 417, 424 [1989]; Bullmore v Ernst & Young Cayman Is., 45 AD3d 461, 464[2007]; Tycon Tower I Inv. Ltd. Partnership v Burgee Architects, 234 AD2d748, 749 [1996]; Tambrands, Inc. v Lockwood Greene Engrs., 178 AD2d 406,408 [1991]). Here, the defendants established, prima facie, that no such relationshipexisted between the parties. The plaintiffs failed to raise a triable issue of fact inopposition.
Finally, the Supreme Court did not err in granting summary judgment dismissing thecause of action alleging breach of contract. The defendants demonstrated, prima facie,that the plaintiff was neither a party to, nor a third-party beneficiary of, the contract atissue (see Mendelsohn [*2]v Ferber, 73 AD3d 1139, 1140 [2010]). The onlyparties to the contract at issue were the defendants and the third-party defendantLeewood Real Estate Group, and no intent to benefit the plaintiffs is apparent from theface of the contract (see EastCoast Athletic Club, Inc. v Chicago Tit. Ins. Co., 39 AD3d 461, 463 [2007]).The plaintiffs failed to raise a triable issue of fact in opposition. Rivera, J.P., Dickerson,Leventhal and Hall, JJ., concur.