Defendants Stuart D. Peaslee (Peaslee), Stuart D. Peaslee Architect, P.C., and Peaslee Carpentry Services (collectively, the Peaslee defendants) move, pursuant to CPLR 3211, for an order dismissing the second, third, fifth, sixth, seventh, eighth and ninth causes of action asserted against them, and dismissing all punitive damage claims asserted against them, on the ground that said claims fail to state a cause of action, and as to the second cause of action, that to the extent that same is a claim for architect's malpractice, the action is barred by the statute of limitations.

Following commencement of the work in February of 2004, it was discovered that parts of the building were structurally unsound, and plaintiffs modified the plans and drawings. According to Peaslee, although said changes increased the costs and delayed construction, plaintiffs rejected his request for payment, resulting in a stoppage of work on June 23, 2004.

In December of 2004, Peaslee discovered that plaintiffs had hired their own contractors who were performing work under the permit obtained by Peasee Carpentry Service, causing him to terminate said permit. Simultaneously, he removed the scaffolding he had caused to be erected at the site in response to plaintiffs' demand.

THE PRESENT COMPLAINT

Plaintiffs commenced the instant lawsuit on October 1, 2007, by filing a summons and verified complaint containing nine separate causes of action. Pleading the existence of a verbal agreement which was finalized as of January 2003, plaintiffs allege that pursuant thereto, plaintiffs were to provide the Peaslee defendants with detailed drawings, plans and specifications for the roof, basement and each of the three floors, and that their approval was required prior to any changes regarding the work, materials or price of materials, was made. 30% of the contract price of $275,000 was to be paid by plaintiffs prior to commencement of the work. The next 60% was to be paid in weekly installments, "provided that the Work was being conducted satisfactorily." The remaining 10% was to be paid, incrementally, as the Peaslee defendants resolved the final "punch list" of unfinished/unsatisfactory items.

The gist of said complaint, as supplemented by Miterko's affidavit, is that although plaintiffs, between December of 2003 and June of 2004, paid the defendants a total of $258,634.00, the Peaslee defendants performed substandard work and caused numerous and substantial delays, some of which were due to Peaslee's inability to "pull" applied-for permits from the Department of Buildings (DOB) because he lacked adequate insurance. Plaintiffs further contend that Peaslee demanded payment for unauthorized work and unsubstantiated change orders, and hired and failed to adequately supervise subcontractors who performed substandard work.

Plaintiffs allege that the Peaslee defendants intentionally waited until the winter to provide plaintiffs with supporting documents to support their demand for reimbursement, knowing that there was no boiler, hot water or cooking gas. They claim that in April of 2004, Peaslee tendered a written contract which altered the terms of their verbal contract, and which they refused to sign. They allege that in June of 2004, Peaslee presented them with a self-prepared "Estimate/Change Order" comprised of a list of work items and dollar amounts, and demanded payment in the amount of $26,532.00 for the work described therein, some of which was unauthorized, and that he threatened to cease work until said charges were paid in full. [*3]

Alleging damages stemming from numerous defects which resulted from defendants' substandard work, plaintiffs claim that at the time defendant stopped work, the home lacked a front facade, that it had been equipped with defective plumbing, and was missing doors and windows; that portions of their neighbors' walls were left exposed; and leaks through the walls and front facade were creating potential mold hazards. They claim that none of these problems could be rectified without their paying Peaslee for disputed charges. Plaintiffs claim that defendants' actions prevented them from renting out two income-producing apartments. They allege that although defendants never finished the work they were obligated to perform, Peaslee appeared at the DOB on December 13, 2004, in his capacity as plaintiffs' architect, to sign off on the permit issued under Job No. 301665678, filed a letter bearing his signature and seal requesting a "Letter of Completion" from DOB, and certified that two "specified items" were "completed" on 12/7/04. During the same time period, they claim that Peaslee went to the DOB and requested withdrawal of Job No. 301764302 ("Alterations to the cellar and first floor").

In support of their opposition to defendants' contention that the present lawsuit is untimely, plaintiffs allege that on December 13, 2004, the Peaslee defendants removed the scaffolding which they had previously affixed to the structural bearing walls of the building. Further citing the contents of one of two (lapsed) Notices of Mechanics Lien filed on or about December 27, 2004 wherein it is stated that the last item of work was performed on October 1, 2004,^[FN3] plaintiffs contend that as contractor, Peaslee continued working on the project until October 1, 2004.

Plaintiffs' first cause of action (Breach of contract)

Although not the subject of the instant motion, Plaintiffs allege in their first cause of action that although they performed all of their obligations under the Agreement, the Peaslee defendants, by withdrawing the aforementioned application from DOB and by filing the Notices of Mechanics Lien, defendants demonstrated their intention to abandon their obligations thereunder, and that their failure to perform said work constituted a breach causing plaintiffs to suffer damages.

Plaintiffs' second, third and fifth causes of action (Negligence, Gross Negligence)^[FN4]

In pleading their second cause of action, plaintiffs allege that they suffered damages because defendants Stuart D. Peaslee and Stuart D. Peaslee Architect, P.C., negligently failed to obtain a certain permit for all work to be done, failed to adequately monitor and inspect the work of subcontractors, failed to alert plaintiffs to changes [*4]reflected in the purported change order, and failed to alert plaintiffs to the fact that certain work for which plaintiffs paid was incomplete or defective. Similar breaches of duty and supervisory responsibilities are alleged in plaintiffs' third cause of action as against Peaslee and Stuart D. Peaslee Carpentry Service.

Plaintiffs, in their fifth cause of action, allege that all defendants' conduct was wanton, willful and in reckless disregard for the safety and well-being of plaintiffs, and seek punitive damages.

Plaintiffs' sixth cause of action (Breach of Warranty)

Alleging that the boiler that was provided by defendants was defective and needed to be replaced, plaintiffs, in their sixth cause of action, seek damages for breach of warranty.

Plaintiffs seventh cause of action (Unjust Enrichment)

Based upon the incomplete work, plaintiffs, alleging unjust enrichment, seek damages in the amount of $100,000.00 in their seventh cause of action.

Plaintiffs eighth cause of action (Damage to Property)

Incorporating by reference all prior allegations, plaintiffs allege entitlement to damages as a result of damage to property caused by defendants' negligence.

Plaintiffs' ninth cause of action (Private Nuisance)

In alleging private nuisance as their ninth cause of action, plaintiffs, seeking compensatory and punitive damages, allege that the intentional and negligent actions of all defendants substantially interfered with plaintiffs' right to use and enjoy their home, both as a residence and as a source of income.

The Individual Causes of Action

Plaintiffs' claim against Peaslee, as architect, is fundamentally a claim that he failed to perform services in a professional, nonnegligent manner by neglecting to comply with the relevant building codes as promised in the agreement (see In re R.M. Kliment & Frances Halsband, Architects (McKinsey & Co., Inc., 3 NY3d 538 [2004]).

The question of whether a cause of action for a professional's negligent failure to provide agreed-upon services is not free from legal debate. The general rule, as stated, is [*5]that "(i)t is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated (citations omitted). This legal duty must spring from circumstances extraneous to, and not constituting elements of, the contract, although it may be connected with and dependent upon the contract (citations omitted)" (Clark-Fitzpatrick, Inc. v Long Island R. Co., 70 NY2d 382, 389-390 [1987]). Consequently, it has been held that a party cannot be held liable on a tort theory of negligence where the allegations sound in breach of contract rather than tort (see Rothstein v Equity Ventures, LLC., 299 AD2d 472 [2002] [motion court's granting of summary judgment dismissing negligence cause of action predicated on claim that defendants breached contract of sale by failing to construct a house with adequate drainage and septic system affirmed]; Zulinski v Merkley Bros., Inc., 247 AD2d 613, 614 [1998] [dismissal of casuses of action alleging that (1) excavation and building of foundation which purportedly deviated from plans and specifications and was not performed in a good and workmanlike manner, and (2) the work was not performed in keeping with the warranty of good quality, affirmed, based upon holding that they asserted nothing more than the general contractor's breach of its implied obligations under the contract with the plaintiffs, barring consideration of such acts as a tort]; see also Merritt v Hooshang Constr. Inc., 216 AD2d 542, 543 [1995] [allegations against a corporation and its officer for negligent construction of a house held to state a cause of action for breach of contract, not negligence]).

On the other hand, as recognized by the Court of Appeals, a professional malpractice claim can "theoretically also rest on breach of contract to obtain a particular bargained-for result" (Chase Scientific Research Inc. v NIA Group, Inc., 96 NY2d 20, 25 [2001]), and a viable claim in tort may thus ensue. Thus, for example, in 17 Vista Fee Assocs. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75 [1999]), the Appellate Division, First Department, in reversing the motion court's dismissal of the plaintiff's negligence claim against defendant engineer, held that with respect to claims against professionals, "[a] legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship. Professionals ... may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties (Id. at 83, quoting Sommer v Fed. Signal Corp., 79 NY2d 540, 552 [1992]; see also Tower Building Restoration, Inc. v 20 E. 9th Street Apartment Corp., 295 AD2d 229, 230 [2002]).

Thus, in accordance with the foregoing principles, the court denies defendant's motion as to the second and fifth causes of action, as well as dismissal of any claim for punitive damages, as such causes of action pertain to Peaslee as architect, since plaintiffs' allegations against Peaslee, as architect, fall within the professional malpractice exception to the general rule as stated above. However, with respect to the Peaslee individually, or Peaslee as general contractor, plaintiffs fail to allege that any such defendants engaged in tortious conduct separate and apart from the alleged failure to fulfill contractual obligations (Zulinski, 247 AD2d at 614). Accordingly, as to these named defendants, the [*6]court (1) dismisses plaintiffs' third, fifth and eighth causes of action (see East Meadow Driving School, Inc. v Bell Atlantic Yellow Pages Co., 273 AD2d 270 [2000]), and (2) grants that branch of such defendants' motion for dismissal of plaintiffs' claim for punitive damages, as asserted in various causes of action, against such defendants, since "[t]o state a claim for an award of punitive damages as an additional and exemplary remedy when the cause of action arises from breach of contract, a plaintiff is required, inter alia, to establish that the defendant's conduct was actionable as an independent tort" (Gleich v Circuit City Stores, Inc., 279 AD2d 448 [2001]). Finally, the court dismisses, as duplicative and redundant, the eighth cause of action as against Peaslee as architect.

Although defendants challenge plaintiffs' cause of action for breach of implied warranty based upon a claim that the language merely alleges defective installation of the boiler, plaintiffs' allegations allege that upon inspection, it was discovered that the pieces of the boiler were missing and/or had been removed prior to installation. Although it is well settled that "whether the action is pleaded in strict products liability, breach of warranty or negligence, it is a consumer's burden to show that a defect in the product was a substantial factor in causing the injury and. . . that the defect complained of existed at the time the product left the manufacturer or entity in the line of distribution being sued" (see Tardella v RJR Nabisoo, Inc., 178 AD2d 737 [1991]; see also Fritz v White Consolidated Industries, Inc., 306 AD2d 896, 897 [2003]), plaintiffs' allegations as to the sixth cause of action are sufficient to withstand defendants' motion to dismiss for failure to state a cause of action, and the court denies same (see Ciampichini v Ring Bros., Inc., 40 AD2d 289 [1973]).

In support of that branch of the motion for dismissal of the seventh cause of action, defendants contend that because the dispute between the parties is governed by contract, the plaintiffs are precluded from asserting a cause of action to recover damages for unjust enrichment. In the present context, such contention is unavailing. In general, the existence of a valid and enforceable contract governing a particular subject matter precludes recovery in quasi contract ( see Clark-Fitzpatrick, Inc., 70 NY2d at 388; Julien J. Studley, Inc. v New York News, 70 NY2d 628, 629 [1987]). However, where there is a bona fide dispute as to the existence of a contract or the application of a contract to the dispute in issue, a plaintiff may proceed upon a theory of quasi contract as well as breach of contract (see Parkash v Utilisave Corp., 295 AD2d 330 [2002]; Sforza v Health Ins. Plan of Greater NY, 210 AD2d 214, 215 [1994]). Here, where plaintiffs allege that the Peaslee defendants breached their obligations under New York's General Business Law § 771(1)© by failing to provide them with a written contract containing "[a] description of the work to be performed, the materials to be provided to the owner including the make, model number or any other identifying information, and the agreed-upon consideration for the work and materials," and that such failure "set the stage for his disastrous mishandling of the Project," they state a cause of action for unjust enrichment, and the court denies defendants' motion with respect thereto. [*7]

Finally, the court grants defendants' motion to dismiss plaintiffs' ninth cause of action for private nuisance. "To recover damages based on the tort of private nuisance, a plaintiff must establish an interference with the use or enjoyment of land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendants' conduct (citations omitted)" (Anderson v Elliott, 24 AD3d 400, 402 [2005]; see also Higgins v Village of Orchard Park, 277 AD2D 989 [2000] ["(t)wo of the five necessary elements of a private nuisance are an interference that is intentional in origin * * * [and] unreasonable in character' (citations omitted)]). Plaintiffs fail to make the requisite showing under the applicable legal standard that defendants' conduct amounted to "an invasion of [plaintiffs'] interest in the use and enjoyment" of their property (see Rashford v Randazzo, 38 AD3d 1261, 1262 [2007]).

Statute of Limitations

"CPLR 214(6) states that an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort' is subject to a three-year statute of limitations" (In re R.M. Kliment & Frances Halsband, Architects, 3 NY3d at 541). "A cause of action to recover damages for professional malpractice against an architect for defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship" (Frank v Mazs Group LLC., 30 AD3d 369 [2006] [plaintiffs' claims not time barred where lawsuit commenced within three years of date defendant-architect applied for certificate of occupancy, his final obligation to plaintiffs under the agreement]). Since the completion of an architect's obligations must be viewed in light of the particular circumstances of the case (Id.), defendants have failed to demonstrate, for the purposes of the present motion, that the action was commenced beyond the running of said statute of limitations, where plaintiffs allege that (1) the defendants' Notices of Mechanics liens state that the last work was performed on October 1, 2004, (2) Peaslee represented, in his filings with the DOB, that work was concluded as of December 7, 2004, and (3) scaffolding was removed by Peaslee on December 13, 2004. Accordingly, that branch of their motion to dismiss the various causes of action as untimely is denied.

The foregoing constitutes the decision and order of the court.

ENTER,

J. S. C.