News & Insights


Malpractice arises when a professional (doctor, lawyer, etc.) with a duty of care to a party acts in a negligent manner that causes harm to that party. Typically, the duty of care arises because there is a direct contractual relationship between the parties – that is, the plaintiff hired the defendant. However, in a recent New York appellate court decision, the Court refused to dismiss a malpractice claim by plaintiffs against an architect where no contract existed between the parties.

The case of Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc. involved plaintiffs who were opening a Little Caesars franchise in Brooklyn and hired a contractor to perform construction work at the location. The contractor then retained Cherico King Architect, P.C. (hereinafter the “Architect”). The services provided by the Architect commenced in the spring of 2014 and in December of 2014, the Architect obtained the New York City Department of Buildings’ Equipment Use Permit and a Letter of Completion with respect to the location.

Thereafter, in December 2016, defendant National Grid Services Inc. shut off the gas services at the Little Caesars location, claiming that the plaintiffs were “stealing gas.” The plaintiffs notified the Architect of the situation and thereafter, between December 2016 and December 2017, the Architect rendered additional services in an effort to remedy the situation. The plaintiffs then commenced this action in March of 2018 against the Architect and various other defendants. The Architect moved to dismiss the claims for architectural malpractice on the grounds that the three-year statute of limitations had expired. The Architect also asserted that because it had no contractual relationship directly with plaintiffs (but rather with plaintiffs’ contractor), it owed no duty of care to the plaintiffs. The Court below granted the motion to dismiss and plaintiffs appealed.

On the issue of the statute of limitations, the New York Supreme Court, Appellate Division, Second Department held that by performing the additional services in an effort to rectify the situation regarding the gas lines between December 2016 and December 2017, the continuous representation doctrine applied to toll the running of the limitations period. The Court held that notwithstanding the Architect’s claim that two years had elapsed between the time he had finished the initial services and the time that plaintiffs sought assistance regarding the gas lines, by taking those additional steps, the continuous representation doctrine may apply and plaintiffs availing themselves of that argument raised an issue of fact precluding the dismissal of plaintiffs’ claims on a motion to dismiss.

The Court also rejected the Architect’s position that because it had not entered into a direct contract with plaintiffs, it could not commit professional malpractice. The Court agreed with the plaintiffs’ assertion that the relationship which existed between the plaintiffs and the Architect was the “functional equivalent of privity” and reinstated plaintiffs’ claim of malpractice.

It seems here that the Court went out of its way to permit the plaintiffs to pursue the claims against the Architect, most likely because the Court felt the Architect was at fault. Professionals such as architects, accountants, and attorneys must be mindful that to the extent they do not have a direct relationship with a party, one can be created by undertaking efforts to rectify a subsequent problem at the request of someone (here the plaintiffs) other than the party with whom the architect had the contractual relationship. By trying to fix a problem, a professional may create a duty of care to the plaintiff as well as toll the statute of limitations.

If you wish to speak to any of our business attorneys regarding a situation similar to this, please contact us.

Leave a Comment