| Sendar Dev. Co., LLC v CMA Design Studio P.C. |
| 2009 NY Slip Op 09153 [68 AD3d 500] |
| December 10, 2009 |
| Appellate Division, First Department |
| Sendar Development Co., LLC, Respondent, v CMADesign Studio P.C. et al., Respondents, and Kevin H. Sweeney, P.E., Appellant, et al.,Defendants. |
—[*1] Kaplan Landau LLP, New York (Eugene Neal Kaplan of counsel), for Sendar DevelopmentCo., LLC, respondent. Gogick, Byrne & O'Neill, LLP, New York (Stephen P. Schreckinger of counsel), for CMADesign Studio P.C., respondent. Morgan Melhuish Abrutyn, New York (Anthony D. Grande of counsel), for Breger TerjesenAssociates, respondent. Goldberg Segalla LLP, Buffalo (Christopher J. Belter of counsel), for R&L Construction,Inc., respondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 22, 2008,which denied defendant Sweeney's motion to dismiss the amended complaint and cross claimsagainst him, unanimously reversed, on the law, with costs, the motion granted and the amendedcomplaint and all cross claims against said defendant dismissed. The Clerk is directed to enterjudgment accordingly.
In 1998, plaintiff Sendar Development Co., LLC acquired a six-story residential building onthe Upper West Side of Manhattan. The following year, plaintiff decided to expand the buildingby adding five additional floors to the top of the building. Subsequently, plaintiff and its agentJadam Equities, Ltd. (Jadam) hired defendants CMA Design Studio P.C. (CMA), BregerTerjesen Associates (Breger), and Kevin H. Sweeney, P.E. (Sweeney) to design the expansionand supervise the contractors, defendants R&L Construction, Inc. (R&L) and Williams PanelBrick (Williams).[*2]
Plaintiff hired CMA and Breger to design the expansion;that is, to prepare, approve, and sign off on the architectural plans for the expansion. Both CMAand Breger agreed to supervise, inspect, approve the construction of the expansion, including theexterior walls, and provide contract administration services for the project. Furthermore, Bregerproposed using the EZ Wall system for the exterior of the project; this is the central point ofdispute in this action.
R&L was hired by plaintiff to assemble and install the EZ Wall system, which consists ofbrick face tile with mortar joints, adhered to a continuous anodized metal support panel laidagainst a continuous vapor barrier membrane. This is supported by building sheathingconstructed of layers of gypsum boards. The gypsum boards, along with the light gauge metalstuds, are connected to the metal support panels to form the building's exterior. The recordreflects that Sweeney's scope of work, as specified in his contract, was to provide structuralengineering services solely for the framing of the additional five floors.
Prior to the expansion being completed in October 2002, the title to the building wastransferred from plaintiff to the condominium association. In Spring of 2004, two years after theexpansion was completed, hallway tiles began to crack and water leaked in around the apartmentwindows in the expansion area. In July 2004, Sweeney was again hired by plaintiff but wasasked only to inspect the cracking and leaks. He determined that there was no structural causefor the cracking and the leaks, and was paid $650 for the inspection.
Following Sweeney's 2004 inspection, severe water leakage continued throughout the entirebuilding. Independent engineering consultants were called in to inspect the building and theyfound that the leaks were caused by serious defects in the EZ Wall system. They also determinedthat the system was improperly installed and was not suitable for this application. The expertsfound that the entire facade needed to be replaced at a substantial cost. Plaintiff agreed to replacethe existing wall system, and, in exchange, the condominium association assigned to plaintiff itslitigation rights.
On June 26, 2007, plaintiff filed an amended complaint against Sweeney, CMA, Breger,R&L, and Williams, alleging 15 causes of action, including breach of contract, negligence, andindemnification. CMA, R&L, and Breger asserted cross claims for contribution and/orindemnification against all the codefendants including Sweeney. On August 16, 2007, Sweeneymoved to dismiss the amended complaint and cross claims against him.
In support of his motion, Sweeney, on the basis of his contract, asserted, inter alia, that hedid not agree to indemnify any other party, that his contract specified he was required to providestructural engineering services only for the light gauge steel framing of the expansion, and thathis contract expressly excluded services such as site visits, inspections, shop drawing review,and panel drawing review. Although Sweeney admitted that he verbally agreed to provideadditional services related to the written agreement such as controlled inspections, Sweeneycontends that these controlled inspections were required by the New York City Building Code inconnection solely with the structural construction of the light gauge steel framing, and not forparts of the project or construction designed or specified by other design professionals relating tothe exterior wall system.
Sweeney further demonstrated that his work was completed on October 11, 2002, when hesent a letter to the New York City Department of Buildings (DOB) requesting a letter of finalcompletion. He received the letter of final completion from the DOB a month later. Sweeney, byproviding documentary evidence of the date he completed his work, asserts that plaintiff's claimsare time-barred since it commenced its action in March 2007 almost two years after the [*3]three-year statute of limitations had expired in October 2005.
In opposition, plaintiff stated that since Sweeney inspected the expansion in Spring 2004, itsclaim did not accrue until then and, thus, its cause of action is not time-barred. Plaintiff claimsthat the statute of limitations was tolled by the continuous representation doctrine since theinspection in 2004 clearly shows that Sweeney continued his professional responsibility toplaintiff. Plaintiff submitted the affidavit of the building manager, Michael Alejandro, who statedthat while Sweeney did not find any structural cause for the leakage and cracking during hisinspection in 2004, a more thorough inspection of the facade would have revealed early signsthat the EZ Wall system was indeed failing. Lastly, plaintiff stated that additional discovery wasneeded in order to afford it to develop and show that Sweeney's Spring 2004 inspection was astep in the continuous and interrelated service that Sweeney provided.
The motion court agreed with plaintiff and denied Sweeney's motion to dismiss, rejectingSweeney's assertion that plaintiff's complaint was time-barred. It found that the issues present inthe motion could not be resolved without discovery in order "to at the very least determine whodid what and under what circumstances."
For the reasons set forth below, we reverse the order and dismiss the amended complaintsince plaintiff commenced its action after the statute of limitations expired, and the continuousrepresentation doctrine, for the purpose of tolling the statute of limitations, is notapplicable.[FN*]
It is well established that a cause of action against a design professional, whether the claim isbased upon breach of contract or malpractice, is to be brought within a three-year statute oflimitations (see CPLR 214). "An owner's claim against a design professional accruesupon the termination of the professional relationship between the parties, when the designercompletes its performance of significant (i.e. non-ministerial) duties under the parties' contract"(Parsons Brinckerhoff Quade & Douglas v EnergyPro Constr. Partners, 271 AD2d 233,234 [2000]). After the completion of work, a relationship between the owner and designprofessional on an incidental matter that does not relate to the contractual duties between theparties will not extend the completion date (see State of New York v Lundin, 60 NY2d987, 989 [1983]).
If the action is commenced after the statute of limitations expires, a plaintiff may be able toavoid dismissal by asserting that the statute of limitations is tolled by the continuousrepresentation doctrine, or at least showing that there is an issue of fact as to its application (860 Fifth Ave. Corp. vSuperstructures—Engrs. & Architects, 15 AD3d 213 [2005]). The doctrine [*4]applies when a plaintiff shows that he or she relied upon anuninterrupted course of services related to the particular duty breached (id. at 214).However, "[t]he mere recurrence of professional services does not constitute continuousrepresentation where the later services performed were not related to the original services"(Hall & Co. v Steiner & Mondore, 147 AD2d 225, 228-229 [1989]).
In the case at bar, Sweeney provided documentary evidence that he completed his work inOctober 2002. Sweeney's final invoice for his services was on October 8, 2002. Furthermore,Sweeney sent a letter to the DOB requesting a letter for final completion which he received.Plaintiff does not dispute that the work was completed in October 2002. Since Sweeney'scontractual duties provided that he was responsible only for the light gauge steel framing of theexpansion, he showed that he had completed it in October 2002. The Spring 2004 inspection, onthe other hand, was for an incidental matter not related to Sweeney's contractual duty ofproviding structural engineering for the light gauge steel framing. Thus, it does not extend thecompletion date of October 2002.
Further, plaintiff has not established that the continuous representation doctrine applies, norhas it shown that there is an issue of fact as to its applicability. The Spring 2004 inspection wasnot related to Sweeney's original professional services nor was it part of any ongoing services.Plaintiff has not shown that Sweeney continuously provided inspection over the exterior wallsystems. While Sweeney concedes that he verbally agreed to provide controlled inspection, itwas limited to the light gauge steel framing for which Sweeney was responsible and not for theexterior wall systems, which was the responsibility of the other defendants. Sweeney's contractexpressly provides that his scope of duty does not cover inspections. Furthermore, plaintiff hasnot shown that Sweeney provided any services between October 2002 and Spring 2004.
Since plaintiff's claim for breach of contract and negligence is time-barred, we do not need toaddress plaintiff's claim for common-law indemnification. Further, codefendants' cross claimsfor contribution against Sweeney should be dismissed since contribution is unavailable where aplaintiff's direct claims against a codefendant seek only a contractual benefit of the bargainrecovery, tort language notwithstanding (see Board of Mgrs. of 195 Hudson St. Condominium v 195 Hudson St.Assoc., LLC, 37 AD3d 312 [2007]). Concur—Gonzalez, P.J., Nardelli, Catterson,Moskowitz and Renwick, JJ.
Footnote *: We reject plaintiff's contentionthat this appeal should be dismissed as moot since, subsequent to the issuance of the order onappeal, it served a second amended complaint which Sweeney answered. Since this Court wasnot furnished with a copy of this particular amended complaint, we cannot determine whether theamended pleading does indeed render this appeal moot (Pier 59 Studios L.P. v Chelsea Piers L.P., 27 AD3d 217 [2006];American Express Travel Related Servs. Co. v North Atl. Resources, 261 AD2d 310,310-311 [1999]). In any event, plaintiff's description of the second amended complaint, namelythat it contains additional allegations concerning Sweeney's structural design, does not show thatplaintiff substantively altered its original complaint (See Munn v New York CityHous. Auth., 202 AD2d 210, 211 [1994]).