Jones v. Sharpe

Mikoll and Levine, JJ.,

concur in part and dissent in part in the following memorandum by Levine, J. Levine, J. (concurring in part and dissenting in part). We respectfully disagree with that part of the majority’s decision which upholds the imposition of liability over against the third-party defendant (engineer). In our view, recovery by defendant State University Construction Fund against the engineer must fail because of the absence of the requisite expert testimony that anything it did or failed to do constituted malpractice, i.e., violated accepted standards of architectural practice (see 530 East 89 Corp. v Unger, 43 NY2d 776, 777). It is undisputed that the engineer’s plans and specifications did not direct the use of the unprotected dissimilar metals as internal components of the heat exchangers, the cause ascribed by plaintiff’s expert for the leaks in those units. Thus, the “design defect” that was alluded to by plaintiff’s expert was not the work product of the engineer, but of the manufacturer. Moreover, since it is equally uncontested that the manufacturer’s shop drawings which were submitted to the engineer for approval did not contain any indication that the juxtaposition of these metals was contemplated, the engineer was never put on actual notice of that design defect. It seems necessarily to follow, then, that the “violation of good practice” described by plaintiff’s expert can only refer to the manufacturer’s design and not to the engineer’s design, nor to the engineer’s conscious disregard of the manufacturer’s design. The majority essentially concedes that malpractice cannot be posited here on the engineer’s specifying the use of the improper metal components and that the manufacturer’s shop drawings did not explicitly disclose that they were to be used. Instead, the majority relies on three alternative theories of negligence on the part of the engineer, namely, (1) the engineer’s failure expressly to direct in the plans and specifications that dissimilar metals were not to be used; (2) the engineer’s approval of the manufacturer’s shop drawings (even though, as the majority states, they “apparently did not reveal the material of the particular components that failed” (majority, p 862), because the shop drawings “did show that dissimilar metals were to be used for other components, and the engineer communicated with the manufacturer concerning internal components” (id.; emphasis added); and (3) the engineer’s failure to inquire into the manufacturer’s qualifications “before acceding to defendant’s suggestion and including Taylor in the design manual” (p 862). As to the first two of the foregoing rationales for *863upholding recovery over against the engineer, it is readily apparent that both are based upon breaches of a standard of professional care different from what plaintiff’s expert referred to as a violation of good practice, namely, that the engineer should have anticipated or suspected the manufacturer’s use of the dissimilar metals, either in the first instance, or after the shop drawings disclosed that “dissimilar metals were to be used for other components”. Certainly, it does not necessarily follow that it was also a “violation of good practice” for the engineer not to have anticipated or suspected the manufacturer’s “violation of good practice”. Without expert opinion specifically directed to the engineer’s failure to anticipate or suspect the manufacturer’s improper use of the two metals, either initially or after seeing its shop drawings, no liability against the engineer may be imposed on the basis of those failures (530 East 89 Corp. v Unger, supra; Pipe Welding Supply Co. v Haskell, Conner & Frost, 96 AD2d 29). There was a similar fatal absence of expert testimony on the third of the majority’s grounds for imposing malpractice liability, i.e., the engineer’s failure to make inquiry as to the qualifications of the manufacturer. The trial court’s finding of fact and conclusions of law do not at all refer to any such failure of the engineer to make inquiry. It based liability solely on the engineer’s “negligence in the approval of the design and specifications of the Taylor heat exchangers”. Moreover, adoption of this failure to inquire theory of the engineer’s liability would have required further evidence and findings on whether such an inquiry would have disclosed the manufacturer’s incompetence, whether the failure to inquire was a proximate cause of the damages and whether an apportionment of damages should have been made on the basis of the contributing negligence of defendant State University Construction Fund in requesting that the engineer include that particular manufacturer in the design manual. Finally, if we are correct that liability on the basis of malpractice must fail because of the lack of appropriately specific expert testimony, the majority’s suggestion that liability may be based upon the engineer’s breach of its contract to “provide complete professional services necessary to complete the design and construction of the project” must also be rejected. Such an agreement by the engineer did not constitute an express special promise to accomplish some definite result, which is necessary in order to sustain a claim of breach of contract for the rendition of professional services (Delaney v Krafte, 98 AD2d 128; Mitchell v Spataro, 89 AD2d 599; Monroe v Long Is. Coll. Hosp., 84 AD2d 576). Accordingly, we would modify the judgment by reversing so much thereof as imposed liability in favor of defendant State University Construction Fund against the engineer.