The liability of an architect or engineer may be in either contract or negligence, depending the basis of the claim and who has been damaged. Pursuant to Naetzker v. Brocton Central School District, 41 N.Y.2d 929 (1977), owners, who have a direct contract with the architect or engineer, may seek compensation in either tort or contract at the owner’s option. A claim by the owner in negligence is generally characterized as a claim for malpractice. Hotel Utica, Inc. v. Arnstrong, 62 A.D.2d 1147 (4th Dep’t 1978). Despite being a relationship founded in contract, an owner may sue an architect or engineer simultaneously for breach of contract and negligence, but will be limited to one recovery. Id.
To recovery from an architect or engineer based on breach of contract, the standard is to show that the architect or engineer failed to perform in accordance with the standards of professional care usually exercised by such professionals. Id. Difficulty arises in assessing the liability of an architect or engineer when judged based upon the contract requirements. For example, if an architect advises an owner of the use of a specific type of roof and the architect has two methods of analysis to evaluate the issue, yet uses ony one method to reach the conclusion that the roof will not meet the building code while the other method would conclude that it could be used, a court may conclude that the architect has committed malpractice. Westmount Intern. Hotels, Inc. v. Sear-Brown Associates, P.C., 65 N.Y.2d 618 (1985). However, if the contract required the architect to determine whether that specific type of roof should be used, a court may determine that malpractice has not occurred. Id. Architects and engineers may be found liable under contract claims for numerous defects, including failure to complete a project on time or work improperly done by others (Steiner v. Wenning, 43 N.Y.2d 831 (1977)), or leaking roofs (Board of Educ. Of Tri-Valley Central School Dist. at Grahamsville v. Celotex Corp., 88 A.D.2d 713 (3rd Dep’t 1982)).
When evaluating a negligent performance of contract claim, courts will apply a test of ordinary and reasonable skill usually exercised by a member of the profession. 530 East 89 Corp. v. Unger, 43 N.Y.2d 776 (1977). As such, to prove malpractice, the owner must present evidence to show the standard of care by which the architect or engineer may be judged and that the architect or engineer did something, or failed to do something, that violated that excepted standard. John Grace & Co., Inc. v. State University Const. Fund, 99 A.D.2d 860 (3d Dep’t 1984).