WALKER v. William Symolon, Respondent. (2008)

Appeal from an order of the Supreme Court (Devine, J.), entered April 8, 2008 in Schoharie County, which, among other things, granted defendant William Symolon's motion for summary judgment dismissing the amended complaint against him.

Plaintiffs and defendants Lawrence Perrotti and Coleen Perrotti have been adjoining property owners in Schoharie County since 2001.   Thereafter, a boundary dispute arose between them.   In 2006, the Perrottis hired defendant William Symolon, a licensed land surveyor, to prepare a survey of their property.   Alleging that the survey prepared for the Perottis was inaccurate, plaintiffs sued Symolon for “professional malpractice” and/or “grossly negligent malpractice.”   In an amended complaint, plaintiffs “change[d] their cause of action against [him] from malpractice to gross professional negligence.”   They further asserted causes of action for constructive eviction and wrongful taking against Symolon.   At issue is an order of Supreme Court granting Symolon's motion for summary judgment and dismissing the amended complaint against him.

We affirm.   No privity of contract, or the functional equivalent thereof, existed between plaintiffs and Symolon.   Accordingly, their cause of action based on allegations stemming from his surveying work for the Perrottis, whether viewed as alleging malpractice or gross negligence, was properly dismissed (see e.g. Ossining Union Free School Dist. v. Anderson LaRocca Anderson, 73 N.Y.2d 417, 419, 541 N.Y.S.2d 335, 539 N.E.2d 91 [1989];  Credit Alliance Corp. v. Arthur Andersen & Co., 65 N.Y.2d 536, 551, 493 N.Y.S.2d 435, 483 N.E.2d 110 [1985];  Bullmore v. Ernst & Young Cayman Is., 45 A.D.3d 461, 464, 846 N.Y.S.2d 145 [2007];  McNar Indus. v. Feibes & Schmitt, Architects, 245 A.D.2d 993, 994, 667 N.Y.S.2d 88 [1997], lv. denied 91 N.Y.2d 812, 672 N.Y.S.2d 848, 695 N.E.2d 717 [1998];  Tycon Tower I Inv. Ltd. Partnership v. Burgee Architects, 234 A.D.2d 748, 749, 651 N.Y.S.2d 637 [1996], lv. denied 90 N.Y.2d 804, 661 N.Y.S.2d 180, 683 N.E.2d 1054 [1997] ).   We likewise find that dismissal of the remaining causes of action was in all respects appropriate.   Thus, Supreme Court's order is affirmed.

ORDERED that the order is affirmed, with costs.

CARPINELLO, J.

CARDONA, P.J., LAHTINEN, KANE and MALONE JR., JJ., concur.