Legal Question in Real Estate Law in New York

It depends on the language in the contract you had with the home inspector and a better understanding of the facts.

As an example I attach a decision written by Justice O'Connell against my client. By the way, I did not represent the client when she sued the home inspector.

A professional home inspector may be subject to tort liability for the failure to exercise reasonable care in performing his professional duties. ( Kohl v. Green, 235 A.D.2d 671, 651 N.Y.S.2d 744 [3d Dept, 1997] ). Expert opinion is required to support allegations of professional negligence unless the alleged act of malpractice falls within the competence of a lay jury. ( 530 East 89 Corp. v. Unger, 43 N.Y.2d 776, 777, 402 N.Y.S.2d 382, 373 N.E.2d 276 (1977); 470 Owners Corp. v. Heimer, 258 A.D.2d 558, 559, 685 N.Y.S.2d 747 [2d Dept, 1999] ). Nevertheless, the contract pursuant to which the services of a home inspector are retained may limit or exclude liability of the inspector for ordinary negligence in performing the inspection absent some special relationship between the parties. ( Rector v. Calamus, 17 A.D.3d 960, 961, 794 N.Y.S.2d 470 [3d Dept, 2005] ). There is no public policy prohibiting the limitation of liability as evidenced by the fact that neither Article 12-B of the Real Property Law enacted in 2004 to regulate professional home inspectors nor the regulations adopted pursuant to it prohibit contractual limitations on liability. The kind of �special relationship� necessary to render a contractual provision limiting liability unenforceable is something more than a conventional relationship between a consumer and a service provider. ( See, Murphy v. Kuhn, 90 N.Y.2d 266, 271, 660 N.Y.S.2d 371, 682 N.E.2d 972 (1997)).

Plaintiff contends that a �special relationship� arose after the inspection when Plaintiff �took Mr. Haber into her confidence and poured out her heart to him.� Generally, a �special relationship� analysis has taken place in the context of determining whether a duty should be imposed where one would not otherwise exist. ( See, Murphy v. Kuhn, 90 N.Y.2d 266, 660 N.Y.S.2d 371, 682 N.E.2d 972 (1997), Kimmel v. Schaefer, 89 N.Y.2d 257, 652 N.Y.S.2d 715, 675 N.E.2d 450 (1996)). Here the question is not whether a duty existed, but whether a contractual provision limiting liability should be enforced. In any event, there must be something more than an ordinary consumer merchant relationship to give rise to a �special relationship.� ( Murphy v. Kuhn, supra at 271, 660 N.Y.S.2d 371, 682 N.E.2d 972; Bennice v. Lakeshore S & L Assoc., 254 A.D.2d 731, 677 N.Y.S.2d 842 [4th Dept, 1998] ). Plaintiff's circumstances did not differ materially from those of any other prospective home purchaser.

A professional home inspector may nevertheless be held liable for gross negligence notwithstanding an otherwise enforceable contractual limitation on liability. ( Peluso v. Tauscher Cronacher, 270 A.D.2d 325, 704 N.Y.S.2d 289 [2d Dept, 2000]; see, Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365 (1992)). Used in such a context, �gross negligence� means; �conduct which smacks' of intentional wrongdoing or evinces a reckless indifference to the rights of others ( Colnaghi, U.S.A. v. Jewelers Protective Servs., 81 N.Y.2d 821, 823-4, 595 N.Y.S.2d 381, 611 N.E.2d 282; see, Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365; Fed. Ins. Co. v. Automatic Burglar Alarm corp., 208 A.D.2d 495, 617 N.Y.S.2d 53).� ( Adler v. Columbia S & L Assoc., 26 A.D.3d 349, 350, 811 N.Y.S.2d 737 [2d Dept, 2006] ).

Mike.