Zoning Consulting is not a Profession for Purposes of a Professional Malpractice Claim

On May 20, 2020, Justice Masley of the New York County Commercial Division issued a decision in 14 LLC v. J & R 240 LLC, 2020 NY Slip Op. 31528(U), holding that zoning consulting is not a profession for purposes of a professional malpractice claim, explaining:

In order to maintain a claim for professional malpractice, defendant must be a professional. To determine whether a group or individual is a professional for purposes of a professional malpractice claim, courts must look for shared qualities, including extensive formal learning and training, licensure and regulation indicating a qualification to practice, a code of conduct imposing standards beyond those accepted in the marketplace and a system of discipline for violation of those standards. Additionally, a professional relationship is one of trust and confidence, carrying with it a duty to counsel and advise clients.

For the purposes of the malpractice claims, Milrose is not a professional. Plaintiff alleges that Milrose provided professional engineering, architectural, and consulting services. Plaintiff further alleges that specifically, Milrose was to perform an initial analysis of the zoning districts at Owner's Lot, and then, when provided measurements of metes and bounds and the present buildings of Sellers by Haynes, to calculate the total Air Rights available at the Owner's Lot, as well as the free-to sell Air Rights available after subtracting the measurement of the present buildings. The Consulting Agreement provides that contracted-for services were zoning consulting services to assist in zoning development potential.

Besides plaintiff's conclusory allegation that Milrose provided engineering and architect services, there is no specific allegation or evidence that Milrose is a licensed engineer or architect, groups that would fall under the ambit of a professional. Rather, the complaint and the Consulting Agree are clear that Milrose was hired to perform consulting services on zoning issues.

Reviewing the criteria above, a zoning consultant does not fall within the ambit of a professional.

To the extent that plaintiff alleges gross negligent malpractice, the court notes that the conduct alleged does not smack of intentional wrongdoing and does is not conduct that evinces a reckless indifference to the rights of others. Plaintiff's allegation that Milrose failed to correctly determine the zoning district of the Owner's Lot, at most, would amount to an ordinary negligence claim.

(Internal quotations and citations omitted).

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