The liability of architects and engineers is most commonly found in the areas of either contract or negligence, depending upon who was damaged and the basis of the claim. Owners, who usually have a direct contract with architects and engineers, may seek compensation in either contract or tort at the option of the owner. Naetzker v. Brocton Contral School Dist., 41 N.Y.2d 929, 394 N.Y.S.2d 627, 363 N.E.2d 351 (1977). If the claim advances in negligence, the action will generally be a claim for malpractice. Hotel Utica, Inc. v. Armstrong, 62 A.D.2d 1147, 404 N.Y.S.2d 455 (4th Dep’t 1978). However, an owner may still sue an architect or engineer simultaneously for breach of contract and negligence, but will be limited to one recovery. Id.
When there is a breach of contract claim against an architect or engineer, courts will apply a standard based in negligence, claiming that the architect or engineer failed to perform in accordance with the standard of professional care usually exercised by such professionals in the community. Id. The contract between the owner and architect will still be controlling if it specifies how the architect or engineer is to perform and the standard for its performance, and therefore the architect or engineer will be judged by the requirements of the contract interpreted in accordance with the generally accepted industry standards where the standard is not clear from the contract itself. For example, if an architect has two acceptable alternate methods of analyzing an issue, the use of only one of those methods to reach a conclusion may be malpractice if the contract requires the architect to determine the issue by all available methods. Westmount Intern. Hotels, Inc. v. Sears-Brown Associates, P.C., 65 N.Y.2d 618, 491 N.Y.S.2d 150, 480 N.E.2d 739 (1985).
When determining a claim of negligent performance of a contract against an architect or engineer, courts will apply a test of ordinary and reasonable skill exercised by a member of the profession. 530 East 89 Corp. v. Unger, 43 N.Y.2d 776, 402 N.Y.S.2d 382, 373 N.E.2d 276 (1977). To prove malpractice, an owner must present expert evidence to show the standard of care by which an architect or engineer’s competence may be judged, and also that the architect or engineer did something or failed to do something that violates the accepted standards of architectural or engineering practice. John Grace & Co., Inc. v. State University Const. Fund, 99 A.D.2d 860, 472 N.Y.S.2d 757 (3d Dep’t 1984).