DECISION AND ORDER Defendants seek an order, pursuant to CPLR §§3211 (a)(1) and (a)(7) dismissing the action. Alternatively, defendants seek to consolidate this action with the matter bearing New York Index Number 153737/2018. Plaintiffs oppose the motion to the extent it seeks to dismiss. Plaintiffs sought to convert an office building they owned and operated, located at 140 West 57th Street, to residential use and retained Hill West Architects, LLP, defendants’ employer, for the conversion. The conversion was to include an addition, increasing the total square footage of the building; however, the addition could not be completed due to a prior transfer of air rights to an adjacent building. Plaintiffs brought suit, alleging the defendants committed, inter alia, malpractice in rendering architectural services to plaintiffs by failing to conduct a title search that, plaintiffs contend, would have revealed the transfer of air rights. Defendants contend that documentary evidence establishes their defense, as a matter of law, to the instant suit. Dismissal under CPLR §3211(a)(1) is “warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Leon v. Martinez, 84 NY2d 83 [1994]). “The evidence submitted in support of such motion must be ‘documentary’ or the motion must be denied” (Cives Corp. v. George A. Fuller Co., Inc., 97 AD3d 713 [2d Dept 2012]). Documentary evidence is unambiguous, authentic, and undeniable; however, affidavits, deposition testimony, and letters are not considered documentary evidence for the purpose of motions to dismiss (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997 [2d Dept 2010]; see also GEM Holdco, LLC v. Changing World Technologies, L.P., 127 AD3d 598 [1st Dept 2015]). Here, defendants have submitted their own affidavits in support of their motion to dismiss. It is beyond cavil that these affidavits are improper on a CPLR §3211 (a)(1) motion to dismiss, and the Court will not consider them for that purpose. To the extent that Hill’s affidavit annexes a proposal purportedly accepted by plaintiffs, the proposal is unsigned and does not establish a defense, as a matter of law, to plaintiffs’ claims of malpractice (Exhibit 1 to Hill Affidavit). Consequently, the documentary evidence supplied by defendants fails to establish a defense, as a matter of law, to the action as required by CPLR §3211 (a)(1). On a CPLR §3211(a)(7) motion to dismiss, the complaint should be liberally construed, the facts presumed to be true, and the pleading accorded the benefit of every possible favorable inference (Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; see also Anderson v. Edmiston & Co., 131 AD3d 416, 417 [1st Dept 2015]; Askin v. Department of Educ. of City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]). The motion must be denied if from the four corners of the pleadings “factual allegations are discerned which taken together manifest any cause of action cognizable at law” (Polonetsky v. Better Homes Depot, 97 NY2d 46, 54 [2001]). A complaint should not be dismissed so long as, “when the plaintiff’s allegations are given the benefit of every possible inference, a cause of action exists,” and a plaintiff may cure potential deficiencies in its pleading through affidavits and other evidence (R.H. Sanbar Proj., Inc. v. Gruzen Partnership, 148 AD2d 316, 318 [1st Dept 1989]). However, bare legal conclusions and factual allegations which are inherently incredible or contradicted by documentary evidence are not presumed to be true (Mark Hampton, Inc. v. Bergreen, 173 AD2d 220 [1st Dept 1991]). Where evidentiary material is submitted on a motion to dismiss a complaint pursuant to CPLR §3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (Leon, 84 NY2d at 88; Gawrych v. Astoria Federal Savings and Loan, 148 AD3d 681 [2d Dept 2017]). “It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 NY2d 382, 389 [1987]; see also Gelita, LLC v. 133 Second Ave., LLC, 42 Misc 3d 1216[A] [Sup. Ct. NY County (Konreich, J.)] [2014]). Notwithstanding, “[p]rofessionals may be subject to tort liability for failure to exercise reasonable care, irrespective of their contractual duties” (Sommer v. Fed. Signal Corp., 79 NY2d 540, 551 [1992]). New York has long recognized tort liability for architectural malpractice (see e.g. 530 E 59 Corp. v. Unger, 43 NY2d 776 [1977]). Defendants contend, inter alia, that because Falconer and Ntanas are not licensed architects in New York, an action for architectural malpractice must fail as against them. However, the correct inquiry is not whether a defendant actually holds the license required by the profession, but whether the defendant held him/her-self out as a licensed professional and whether his/her conduct departed from the applicable standard of care (see Health Acquisition Corp. v. Program Risk Mgmt., Inc., 1005 AD3d 1001 [2d Dept 2013]; see also Silverboys, LLC v. Skordas, 2015 WL 5222871 [Sup. Ct. NY County (Scarpulla, J.)]). As the instant motion to dismiss was made prior to discovery, a determination of the appropriate standard of care due would be premature and must await further discovery related to representations made by the unlicensed defendants and the work they performed (see e.g. Gelita, LLC, 42 Misc 3d 1216[A]). Nor is a claim for professional malpractice duplicative of a breach of contract claim, as defendants contend. Professionals are subject to tort liability for their failure to exercise reasonable care, regardless of their contractual duties (Sommer, 79 NY2d at 551; see also 7 Vista Fee Assoc. v. Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1st Dept 1999]). Consequently, treating the allegations in the complaint as true and according plaintiffs the benefit of every favorable inference, the complaint validity asserts causes of action against defendants for breach of contract and professional malpractice sufficient to survive a motion to dismiss. Defendants alternatively seek to consolidate the instant matter with the matter in 150 West 57th Street Building, LLC v. Hill West Architects, et al. bearing New York Index Number 153737/2018, currently before this Court. Consolidation rests within the discretion of the Court and is appropriate where two actions involve “a common question of law or fact” (CPLR §602[a]). The burden is on a party resisting consolidation to show that consolidation would be prejudicial (Vigo S.S. Corp. v. Marship Corp., 26 NY2d 157 [1970]). Here, the plaintiffs do not oppose consolidation. Insomuch as this matter arises from the same alleged conduct giving rise to the Hill West Architects action, and the instant defendants are employees of the Hill West Architects defendant, consolidation is appropriate. Accordingly, it is ORDERED that defendants’ motion to dismiss is denied; and it is further ORDERED that to the extent defendants’ motion seeks consolidation, it is granted; and the above-captioned action is consolidated in this Court with 140 WEST 57TH STREET BUILDING, LLC and BROADWALL CONSULTING SERVICES vs. HILL WEST ARCHITECTS, LLP et al, Index No. 153737/2018 (New York County) under New York County Index No. 153737/2018 and the consolidated action shall bear the following caption: 140 West 57th Street Building, LLC, and Broadwall Consulting Services, Plaintiffs v. Hill West Architects, LLP, Goldstein Hill & West Architects, LLP, and Howard Falconer, Leo Steven Hill and Christos Ntanas, Defendants; 153737/2018 and, it is further ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further ORDERED that, within 30 days from entry of this order, movant shall serve a copy of this order with notice of entry on the Clerk of the Court (60 Centre Street, Room 141 B), who shall consolidate the documents in the actions hereby consolidated and shall mark his records to reflect the consolidation; and it is further ORDERED that counsel for the movant shall contact the staff of the Clerk of the Court to arrange for the effectuation of the consolidation hereby directed; and it is further ORDERED that service of this order upon the Clerk of the Court shall be made in hard-copy format if this action is a hard-copy matter or, if it is an e-filed case, shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supetmanh); and it is further ORDERED that, as applicable and insofar as is practical, the Clerk of this Court shall file the documents being consolidated in the consolidated case file under the index number of the consolidated action in the New York State Courts Electronic Filing System or appropriate notations of such documents in the e-filing records of the court so as to ensure access to the documents in the consolidated action; and it is further ORDERED that, within 30 days from entry of this order, movant shall serve a copy of this order with notice of entry on the Clerk of the General Clerk’s office (60 Centre Street, Room 119), who is hereby directed to reflect the consolidation by appropriately marking the court’s records; and it is further ORDERED that such service upon the Clerk of the General Clerk’s Office shall be made in hard-copy format if this action is a hard-copy matter or, if it is an e-filed case, shall be made in accordance with the procedures set forth in the aforesaid Protocol. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Dated: September 18, 2019
