Antonio Di Oronzo, Plaintiff, v. THE WALL CONSULTING GROUP INC DAVE WALL CALVIN TRAN ANTHONY JONES (2023)

In this action, plaintiff, Antonio Di Oronzo, moves without opposition for default judgment under CPLR 3215 to recover $53,515.23 plus statutory interest for breach of contract by defendant, TWIG Consulting Engineers, P.C. (TWIG), The Wall Consulting Group, and for negligent misrepresentation and fraud by defendants Dave R. Wall, Calvin Tran, and Anthony M. Jones. The motion is granted with respect to plaintiff's negligent-misrepresentation claim as against Wall and Tran, and otherwise denied.

DISCUSSION

Plaintiff allegedly entered into an oral agreement with TWIG/Wall Consulting under which it would (i) design the mechanical, electrical, and plumbing systems for renovations on plaintiff's apartment; and (ii) review submissions by plaintiff's contractors for related equipment and components "to ensure compliance and conformity with the design and plans for the Project."¹ (NYSCEF No. 1 at ¶ 22.) Plaintiff claims that Wall and Tran, as professional engineers and/or employees of TWIG, improperly approved HVAC parts that required a three-phase electrical feed despite the plans' reliance on the building's pre-existing single-feed service. Plaintiff is seeking damages for the cost of the purchase and installation of additional parts that he alleges were required to correct the issue.

Plaintiff now moves for default judgment under CPLR 3215. To merit default judgment, a plaintiff must establish service, the defendant's default, and the facts constituting the plaintiff's claim. (CPLR 3215 [f].) Here, plaintiff properly served TWIG through delivery to an authorized agent under CPLR 311 (a) (1), and individual defendants through leave and mail under CPLR 308 (2). Defendants have not appeared.

To establish the facts constituting his claims, plaintiff relies on his own affidavit.² (See NYSCEF No. 9.) This affidavit, however, does not sufficiently support all of plaintiff's claims.

I. Plaintiff's Breach-of-Contract Cause of Action Against TWIG

Plaintiff's first cause of action is for breach of contract against TWIG. But plaintiff has not demonstrated the existence of an enforceable oral contract in the first place. Plaintiff's affidavit does not, for example, identify any consideration that he provided to TWIG in exchange for its design services, nor attach any invoices, payment records, or the like.³ (See Wild v Hayes, 68 AD3d 1412, 1414 [3d Dept 2009] [affirming dismissal of complaint for lack of consideration].) Nor does the affidavit describe in any detail the nature and extent of TWIG's design-related obligations under the putative oral contract. This court is thus skeptical that plaintiff has "described the scope of work in sufficiently specific terms to support a determination that the parties had reached a meeting of minds," as required to give rise to an enforceable contract. (Kelly v Bensen, 151 AD3d 1312, 1313 [3d Dept 2017].)

II. Plaintiff's Negligent-Misrepresentation Cause of Action Against Wall, Tran, and Jones

Plaintiff's second cause of action, sounding in negligent misrepresentation, is asserted against defendants Wall, Tran, and Jones. Plaintiff represents that these defendants' decision to approve the use of two particular pieces of heating/ventilation/air-conditioning (HVAC) equipment, as proposed by plaintiff's HVAC contractor, fell below professional standards; and that as a result of this erroneous approval, plaintiff had to incur approximately $53,000 in costs to obtain and install satisfactory HVAC equipment.

It is clear that "[p]rofessionals . . . may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties"—for example, by failing to exercise the skill and judgment required of members of the relevant profession. (17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1st Dept 1999].) Plaintiff's affidavit and its supporting exhibits reflect that plaintiff relied on the TWIG engineers' approvals of the HVAC equipment at issue, and that they sent him those approvals knowing that he would be relying on them. Thus, whether or not the relationship between plaintiff and TWIG was embodied in an enforceable contract, plaintiff's affidavit establishes for default-judgment purposes that TWIG engineers owed him a duty of care. (See Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 424-425 [1989].)

Plaintiff's representation that Wall and Tran violated accepted standards of practice by approving mechanical parts that were incompatible with the building's electrical system, forcing plaintiff to pay to correct the error, adequately alleges that Wall and Tran breached that duty of care. (See NYSCEF No. 9 at ¶¶ 13-18; see also NYSCEF Nos. 18-19 [copies of approvals and transmittal emails].) And plaintiff may properly seek to hold Wall and Tran "liable for participating in the commission of the tort alleged." (AB Oil Servs., Ltd. v TCE Ins. Servs., Inc., 188 AD3d 624, 629 [2d Dept 2020].)

This court reaches a different conclusion with respect to plaintiff's negligent-misrepresentation claim against Jones. Plaintiff's affidavit represents that Jones was also involved in the two approvals at issue. (NYSCEF No. 9 at ¶¶ 13-16.) That representation, however, is undermined by the annexed copies of the approvals themselves. The approval stamps on those documents were affixed by Wall and Tran, not Jones; and Jones did not transmit the approvals to plaintiff, either.⁴ (See NYSCEF Nos. 18, 19.) On this record, plaintiff has not sufficiently established the facts that would constitute a negligent-misrepresentation claim against Jones.

III. Plaintiff's Fraud Cause of Action Against Wall, Tran, and Jones

Plaintiff has also asserted a fraud claim against Wall, Tran, and Jones, again related to the two approvals of HVAC equipment. Plaintiff's papers on this motion do not establish the facts constituting that claim.

According to plaintiff, Wall, Tran, and Jones falsely represented that "the HVAC equipment and components they approved indeed complied with the HVAC design and HVAC plans for the project." (NYSCEF No. 9 at ¶ 20.) But the approvals submitted by plaintiff on this motion do not include such a representation.⁵ Rather, the approval stamps affixed by Wall and Tran to the contractor's HVAC equipment submissions recite that their review "is only for general conformance with the design concept of the project and general compliance with the information given in the contract documents." (NYSCEF No. 18 at 2; see also NYSCEF No. 19 at 2 [same].) And Plaintiff has not alleged that the equipment approved by Wall and Tran failed to conform to TWIG's HVAC design. Rather, as plaintiff's affidavit states earlier, that design itself "was defective and deficient," in that it "failed to account for and consider the electrical load capabilities of the building where the Project was located." (Id. at ¶ 6; see also id. at ¶ 7 [representing that plaintiff "incurred substantial costs and expenses to replace and correct the HVAC system and components that were defectively and deficiently designed by TWIG for the Project"].)

Plaintiff does also allege that Wall, Tran, and Jones falsely represented that "the approved HVAC equipment and components would work for and be compatible with the single-feed electrical system at the building where the Project was located." (NYSCEF No. 9 at ¶ 22.) The affidavit does not, however, include any facts describing the timing or circumstances of this representation. For that matter, it is unclear whether plaintiff even intends to suggest that two distinct (mis)representations by Wall, Tran, and Jones occurred related to the HVAC equipment at issue.

In these circumstances, plaintiff's affidavit does not make out the elements of common-law fraud against Wall, Tran, or Jones with the particularity required by CPLR 3016 (b).⁶

IV. The Date of Interest Accrual on Plaintiff's Negligent-Misrepresentation Claim

Plaintiff asserts that the accrual date for interest on his negligent-misrepresentation claim should be June 3, 2020, the date when Wall and Tran negligently approved the second HVAC equipment submission. But plaintiff was not damaged by that negligence until he had to pay to modify the project's electrical system. Plaintiff submits three invoices showing payments made for this purpose on November 17, 2020, March 11, 2022, and September 22, 2022. (See NYSCEF No. 17.) Interest will run separately on each of these three payments from the date of payment.

Accordingly, it is

ORDERED that plaintiff's motion for default judgment under CPLR 3215 is granted with respect to plaintiff's second cause of action for negligent misrepresentation as against defendants Wall and Tran, and the motion is otherwise denied; and it is further

ORDERED that plaintiff is awarded a money judgment against Wall and Tran, jointly and severally, in the amount of (i) $2,925, with interest running at the statutory rate from November 17, 2020; plus (ii) $15,350, with interest running at the statutory rate from March 10, 2022; plus (iii) $35,240.23, with interest running at the statutory rate from September 21, 2022; plus (iv) costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff may seek entry of a supplemental default judgment under CPLR 3215 on plaintiff's remaining claims, but must do so by motion on notice filed within 30 days of entry of this order or those claims will be dismissed; and it is further

ORDERED that plaintiff shall serve a copy of this order with notice of its entry on all parties and on the office of the County Clerk, which shall enter judgment accordingly.

DATE 1/13/2023

FOOTNOTES

1.   The record on this motion is unclear on the relationship between TWIG and Wall Consulting, and whether one, in practice, operates primarily as a trade name for the other. This decision refers to these two defendants collectively as TWIG.

2.   Plaintiff's complaint is verified only by his attorney. (See NYSCEF No. 1 at 12.) That verification does not indicate that counsel has personal knowledge of the complaint's allegations. As a result, the verified complaint cannot serve as an affidavit of facts for purposes of this motion. (See Joosten v Gale, 129 AD2d 531, 534-535 [1st Dept 1987].)

3.   Plaintiff's claimed damages also do not include a claim for reimbursement of part or all of any design fee that he might have paid to defendants.

4.   For that matter, Jones is copied as a recipient only on the second of the two transmittal emails, not both. (See NYSCEF No. 18 at 1; NYSCEF No. 19 at 1.)

5.   Nor, as discussed above, has plaintiff provided any basis to believe that Jones was involved in making this set of representations to plaintiff.

6.   Given this conclusion, the court does not reach the question whether plaintiff's fraud claim is also subject to dismissal as duplicative of his breach of contract claim. (See Soames v 2LS Consulting Eng'g, D.P.C., 187 AD3d 490, 491 [1st Dept 2020].)

Gerald Lebovits, J.