159 A.D.2d 784 | N.Y. App. Div. | 1990
On April 3, 1979, plaintiff contracted with defendant Cataldo & Waters, Architects, P. C. (hereinafter defendant) to provide architectural services as part of energy conservation projects at eight of its buildings, which included, in the part here relevant, installation of insulation between the ceiling panels and roof deck of a one-story building known as Pleasant Avenue Elementary School in the City of Johnstown, Fulton County.
We first consider whether the six-year Statute of Limitations governing contract actions (CPLR 213 [2]) bars plaintiff’s first cause of action (see, Sears, Roebuck & Co. v Eneo Assocs., 43 NY2d 389, 395). The amended complaint alleges that defendant breached the contract by its negligent preparation of specifications and by failing to properly supervise performance of the work by the contractors. Plaintiff’s claim accrued, for the purposes of all Statutes of Limitation, on completion of the construction (supra, at 394). It is generally conceded that the contractors last worked on August 16, 1979 and that final payment was approved on July 7, 1980, albeit without the required documentation of entitlement furnished by defendant. Therefore, this suit, commenced October 29, 1986, more than six years after final payment, would ostensibly appear untimely (see, State of New York v Lundin, 60 NY2d 987). Plaintiff contends, however, and Supreme Court held, that the regular communications between the parties, coupled with defendant’s efforts to ascertain the cause of the
Defendant characterizes our application of the continuous treatment doctrine to toll the Statute of Limitations in Board of Educ. v Thompson Constr. Corp. (supra) as a departure from the rule in contract cases that the limitation of time commences to run when construction has been completed (see, e.g., Kassner & Co. v City of New York, 46 NY2d 544, 550) and urges us to find that the continuation of an owner’s relationship with the architect does not of itself serve to extend construction completion (citing State of New York v Lundin, supra, at 989; see also, Cabrini Med. Center v Desina, 64 NY2d 1059; Phillips Constr. Co. v City of New York, 61 NY2d 949). Defendant further argues that since an architect’s claim for contribution against a contractor can be time barred at the same time the architect can be held liable to an owner under the continuous treatment doctrine (Board of Educ. v Sargent, Webster, Crenshaw & Folley, 125 AD2d 27, affd 71 NY2d 21), an unfair anomaly is created and urges that we reverse our previous position expressed in Board of Educ. v Thompson Constr. Corp. (supra).
We find that the cases relied upon are distinguishable and decline to depart from our previous holding. In State of New York v Lundin (supra), the evidence showed that the owner had indeed accepted and paid for the architects’ (and contractors’) work, and effectively discharged them under the contract and that no mention of any actual ongoing construction after the completion date appeared; rather, only paperwork relating to price adjustments and incidental matters remained. The cases of Phillips Constr. Co. v City of New York (supra) and Cabrini Med. Center v Desina (supra) both involved owners’ breach of contract claims against the general contractors, not architects. In all three cases, the claims asserted more than six years after actual completion of construction, acceptance by the owner and final payment were held to be time barred. In contrast, in this case against architects, there is proof that defendant actively continued its responsibilities under the contract by working for and with
We further find that time limitations should not serve to bar either the second cause of action alleging fraud (CPLR 213 [8] [six years]) or the third cause of action based upon negligence (CPLR 214 [three years]), but that the timeliness issue as to each presents factual issues more properly determined at trial. Plaintiff contends that defendant was aware of and concealed the causes of the problem until 1986, that it relied upon defendant’s superior knowledge and expertise, and was misled and forestalled from timely action against the contractors. Defendant, on the other hand, alleges that plaintiff was fully aware that the insulation was at the root of the condensation problem as early as 1979 and should have timely sued the contractors. These are factual issues and resolution is best made by a trier of the facts rather than by motion. We note that contrary to defendant’s assertions, plaintiff has alleged a cause of action for fraud separate and distinct from its breach of contract cause, which we have already held was timely. While allegations of fraud may not be incidentally asserted to salvage an otherwise time-barred breach of contract claim (see, Cabrini Med. Center v Desina, supra; Queensbury Union Free School Dist. v Walter Corp., 101 AD2d 992, affd 64 NY2d 964), that situation does not pertain here.
Finally, we consider whether plaintiff’s third cause of action for negligence was time barred. The amended complaint alleges that defendant breached its duty to exercise the reasonable care of a prudent professional by negligently failing to exercise its skill and expertise to discover and inform plaintiff of the cause of the problem, and that plaintiff was delayed and frustrated in seeking recovery of its damage from the contractors. Negligence is governed by a three-year Statute of Limitations (CPLR 214). Plaintiff has offered proof that it both sought and received continued services, advice and expertise from defendant in solving the condensation problem throughout the period from 1980 to 1986. Defendant, on the other hand, contends that plaintiff was fully aware of the cause of the problem as early as 1979 and that, if dissatisfied with defendant’s failure to provide a remedy, it should have dis
Supreme Court’s order should therefore be modified by reversing so much thereof as denied plaintiff’s motion to dismiss defendant’s affirmative defense of the Statute of Limitations as barring plaintiff’s first and second causes of action. Plaintiff’s motion should be granted to that extent and, as thus modified, affirmed.
Order modified, on the law, without costs, by reversing so much thereof as denied plaintiff’s motion to dismiss the second affirmative defense regarding the first and second causes of action of the complaint; motion granted to that extent and said portions of the second affirmative defense are dismissed; and, as so modified, affirmed. Mahoney, P. J., Kane, Weiss, Mercure and Harvey, JJ., concur.
Plaintiff contracted separately for performance of the installation by a general contractor who, together with subcontractors, were also named defendants in this action. This action was discontinued against these defendants.