694 N.Y.S.2d 374 | N.Y. App. Div. | 1999
Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about January 8, 1999, granting defendants Cushman & Wakefield of Pennsylvania, Inc. and Cushman & Wakefield, Inc.’s motion for summary judgment dismissing the second, third, fourth and fifth causes of action in the amended complaint, unanimously reversed, on the law, with costs and disbursements, the motion denied, and said causes of action reinstated.
Plaintiff, a consortium of investors, loaned Shore Mall Associates, L.P. (SMA) $49,125,000 to refinance a New Jersey shopping center known as Shore Mall. The loan was expressly conditioned on the borrowers obtaining an appraisal showing Shore Mall as having a value of at least $60,000,000. SMA selected Cushman & Wakefield, for a fee of $18,000, to appraise the property. The letter agreement between SMA and Cushman & Wakefield contains an express acknowledgment that the appraisal report was intended to assist SMA in obtaining financing and that the report could be submitted to prospective lenders, including several affiliated with plaintiff.
Cushman & Wakefield appraised Shore Mall at $65,500,000,
As a professional appraiser, Cushman & Wakefield owed a duty to plaintiff independent of any contractual obligation. “Professionals, common carriers and bailees, for example, may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties * * *. In these instances, it is policy, not the parties’ contract, that gives rise to a duty of due care.” (Sommer v Federal Signal Corp., 79 NY2d 540, 551-552 [citations omitted].) In such circumstances, contrary to the IAS Court’s holding, the fact that the same facts serve as the basis of both the tort and contract claims is of no moment. “[L]lability in tort may arise from and be inextricably intertwined with that conduct which also constitutes a breach of contractual obligations.” (Apple Records v Capitol Records, 137 AD2d 50, 55.) Here, the record shows that Cushman & Wakefield knew that plaintiff would be relying on its appraisal. Thus, it had a duty to plaintiff, independent of its contract with SMA. Although the legal duty for tort liability must spring from facts extraneous to and not constituting elements of the contract, it"may be connected with and dependent upon the contract.” (Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389.) When a professional, such as Cushman & Wakefield, has a specific awareness that a third party will rely on his or her advice or opinion, the furnishing of which is for that very purpose, and there is reliance thereon, tort liability will ensue if the professional report or opinion is negligently or fraudu
No issue is raised on appeal as to the thirteenth cause of action.