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Walker v. Chiauzzi

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 31, 2008

JOHN A. WALKER ET AL., APPELLANTS,
v.
PETER CHIAUZZI ET AL., DEFENDANTS, AND WILLIAM SYMOLON, RESPONDENT.

The opinion of the court was delivered by: Carpinello, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: November 17, 2008

Before: Cardona, P.J., Carpinello, Lahtinen, Kane and Malone Jr., JJ.

MEMORANDUM AND ORDER

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 NY2d 417, 419 [1989]; Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 551 [1985]; Bullmore v Ernst & Young Cayman Is., 45 AD3d 461, 464 [2007]; McNar Indus. v Feibes & Schmitt, Architects, 245 AD2d 993, 994 [1997], lv denied 91 NY2d 812 [1998]; Tycon Tower I Inv. Ltd. Partnership v Burgee Architects, 234 AD2d 748, 749 [1996], lv denied 90 NY2d 804 [1997]). We likewise find that dismissal of the remaining causes of action was in all respects appropriate. Thus, Supreme Court's order is affirmed.

Cardona, P.J., Lahtinen, Kane and Malone Jr., JJ., concur.

ORDERED that the order is affirmed, with costs.

20081231

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