| Town of Wawarsing v Camp, Dresser & McKee, Inc. |
| 2008 NY Slip Op 02709 [49 AD3d 1100] |
| March 27, 2008 |
| Appellate Division, Third Department |
| Town of Wawarsing, Appellant, v Camp, Dresser &McKee, Inc., et al., Respondents. |
—[*1] Zetlin & DeChiara, L.L.P., New York City (Michael J. Vardaro of counsel), forrespondents.
Malone Jr., J. Appeal from an order of the Supreme Court (Lynch, J.), entered December 12,2006 in Ulster County, which granted defendants' motion to dismiss the complaint astime-barred.
Between May 1996 and December 2000, plaintiff entered into a number of agreements withdefendant Camp, Dresser & McKee, Inc. (hereinafter CDM) to provide engineering services forthe construction of the Napanoch Water District in the Town of Wawarsing, Ulster County. Theconstruction consisted of five phases. CDM provided both design and onsite resident inspectionservices during phases I through III, which entailed a hydrogeological investigation, well testingand the construction of the infrastructure and water distribution piping. CDM supervisedconstruction and issued certificates of substantial completion during these phases. Phases IV andV involved the construction of the water storage tank and well field. CDM provided onlypreconstruction design services during these phases as plaintiff had retained another engineeringfirm, Brinnier and Larios, P.C., to provide on-site resident inspection services.
CDM sent plaintiff its final invoice for services rendered on the project on July 8, 2002 andissued a certificate of substantial completion with respect to phase III on August 30, 2002.Brinnier issued certificates of substantial completion for phases IV and V on August 28, 2002and November 27, 2002, respectively. Plaintiff subsequently obtained authorization from the[*2]Ulster County Department of Health to start operating thewater system. Soon after the system became operational in October 2003, plaintiff discoveredthat the flow ratio was less than expected and that the water contained high levels of iron andmanganese. As a result, on April 20, 2006, plaintiff commenced this action against CDM forprofessional malpractice.[FN*]CDM, in turn, moved to dismiss the action as time-barred or, alternatively, for summaryjudgment. Supreme Court dismissed the action as untimely and this appeal by plaintiff ensued.
Initially, we note that actions for malpractice against nonmedical professionals are governedby the three-year statute of limitations set forth in CPLR 214 (6) (see Saint Alexander'sChurch v McKenna, 294 AD2d 695, 696 [2002]; IFD Constr. Corp. v Corddry CarpenterDietz & Zack, 253 AD2d 89, 91-92 [1999]). Furthermore, a claim for professionalmalpractice against an engineer or architect accrues upon the completion of performance underthe contract and the consequent termination of the parties' professional relationship (see Frank v Mazs Group, LLC, 30AD3d 369, 369-370 [2006]; Matter of Kohn Pederson Fox Assoc. [FDIC], 189AD2d 557, 558 [1993]; Board of Educ. of Tri-Val. Cent. School Dist. at Grahamsville vCelotex Corp., 88 AD2d 713, 714 [1982], affd 58 NY2d 684 [1982]). In determiningthe date of accrual, the completion of the engineer's obligations must be viewed in light of theparticular circumstances of the case (see Frank v Mazs Group, LLC, 30 AD3d at 370).
The dispositive issue here is the date upon which plaintiff's claim accrued. Although plaintiffhas advanced a number of theories, the parties have conceded that, in view of the immediate trialordered by Supreme Court upon granting plaintiff's motion for reargument, the only one that needconcern this Court is plaintiff's contention that accrual is governed by the remedial provisioncontained in paragraph A-21 of the parties' March 1997 agreement, which addresses phases Ithrough III of the project. That provision reads, in pertinent part, as follows: "[CDM] will beavailable to furnish engineering services and consultations necessary to correct unforeseenproject operation difficulties for a period of one year after the date of statement of substantialcompletion of the facility. . . [CDM] will assist [plaintiff] in performing a review ofthe project during the 11th month after the date of the certificate of substantial completion."Plaintiff argues that following the issuance of the final certificate of completion for the project onNovember 27, 2002, CDM was obligated under the above provision to review the project inOctober 2003 and to remedy any problems until November 2003. Plaintiff asserts that its claimdid not accrue until one year after November 27, 2002 and that, because this malpractice actionwas commenced within three years, it is timely.
Initially, we look to the parties' intent as embodied in their agreement to determine whentheir professional relationship ended. We are guided by basic principles of contract constructionwhich instruct that the provisions of a contract should be construed as a whole with all parts to begiven effect (see 350 E. 30th Parking v Board of Mgrs. of 350 Condominium, 280 AD2d284, 287 [2001]; Sullivan County Gas Serv. v Phoenix Mut. Life Ins. Co. of Hartford,111 AD2d 542, 543 [1985]) and that, where unambiguous, the contract language should be givenits plain and [*3]ordinary meaning (see State of New York v Robin OperatingCorp., 3 AD3d 757, 758 [2004]; TDX Constr. Corp. v Dormitory Auth. of State ofN.Y., 306 AD2d 115, 116 [2003]). Applying these principles, a review of the March 1997agreement reveals that CDM had many responsibilities with respect to the design and oversightof the first three phases of the project, most of which were performed before and during theconstruction. The remedial provision contained in paragraph A-21 is an exception as, by its plainterms, it contemplates obligations that extend not just beyond CDM's issuance of a certificate ofsubstantial completion for the first three phases, but beyond the date of the issuance of thecertificate of substantial completion "of the facility." Significantly, the payment provisions weredrafted to take specific account of such obligations insofar as they provide that "[a] final paymentto equal 100 percent shall be made when it is determined that all services required by this[a]greement have been completed except for the services set forth in [s]ection A-21hereof" (emphasis added).
The parties entered into another agreement in December 2000 concerning phases IV and V,specifically with respect to the construction of the water storage tank. CDM's responsibilitiesunder this agreement consisted mainly of design services as Brinnier had at this point beenretained to perform resident inspection services. Significantly, the December 2000 agreement didnot alter or modify the remedial or payment provisions with regard to the work to be performedunder the March 1997 agreement. Rather, because it was a separate agreement covering entirelydifferent phases of the project, it contained its own provisions governing when CDM's designservices were considered complete and when payment was due. Contrary to CDM's claim, theDecember 2000 agreement did not supersede the March 1997 agreement with respect to theseremedial and payment terms.
It is clear that CDM provided design services over the course of several years throughout allfive phases of the project. Plaintiff alleges that the problems that were discovered only after thewater system became operational in October 2003 were attributable to certain design defects. Theinclusion of the remedial provision in paragraph A-21 of the March 1997 agreement clearlyreveals the parties' awareness that problems with such an extensive project might not be apparentuntil the whole system was substantially complete. The clauses obligating CDM to undertake areview during the 11th month and to take corrective action within 12 months after the issuance ofthe certificate of substantial completion of the entire project evidence the parties' intent that theirprofessional relationship continue until that time. The fact that plaintiff did not specificallyrequest CDM to perform these obligations does not nullify CDM's contractual obligations. Nordoes CDM's submission of its final invoice for services in July 2002 signal the end of the parties'relationship, particularly in view of the payment provisions of the March 1997 agreement. Basedupon the circumstances presented, we conclude that the claim did not accrue until the parties'professional relationship ended and that this occurred when CDM's obligations under paragraphA-21 of the March 1997 agreement terminated (see e.g. Vogelsang v McQuestion, 136Misc 2d 176 [1987]). Inasmuch as this was less than three years prior to the commencement ofthe action, we find that it was timely. Notwithstanding CDM's claim to the contrary, the remedialprovision at issue does not constitute an agreement to extend the statute of limitations of the typethat was declared invalid by the Court of Appeals in John J. Kassner & Co. v City of NewYork (46 NY2d 544 [1979]).
Cardona, P.J., Peters, Carpinello and Rose, JJ., concur. Ordered that the order is reversed,with costs, and motion denied. [See 13 Misc 3d 1240(A), 2006 NY Slip Op 52192(U).]
Footnote *: A supplemental complaint wasfiled in May 2006 naming Camp, Dresser & McKee, a partnership, as an additional defendant.