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R.M. Kliment & Frances Halsband12/16/2004
ompliance with the relevant building code may have been a particular bargained-for result, that result is not inconsistent with an architect's ordinary professional obligations . Making such ordinary obligations express terms of an agreement does not remove the issue from the realm of negligence as argued by McKinsey, nor can it convert a malpractice action into a breach of contract action.
K&H;did not guarantee a particular result or agree to perform a service above or beyond that which it might be expected to accomplish using due care even in the absence of the specific term in the agreement. Allowing this claim to proceed would accomplish the precise result the Legislature sought to prevent allowing what is essentially a malpractice claim to be couched in breach of contract terms in order to benefit from the six-year statute of limitations. McKinsey's claim is fundamentally a claim that K&H;failed to perform services in a professional, non-negligent manner by neglecting to comply with the relevant building codes as promised in the agreement. As a result, the claim is barred by CPLR 214 (6).
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs. Opinion by Judge Ciparick. Chief Judge Kaye and Judges Smith, Rosenblatt, Graffeo, Read and Smith concur.
Decided December 16, 2004
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