| City of Binghamton v Hawk Eng'g P.C. |
| 2011 NY Slip Op 05157 [85 AD3d 1417] |
| June 16, 2011 |
| Appellate Division, Third Department |
| City of Binghamton, Appellant, v Hawk Engineering P.C.,Respondent. |
—[*1] Sugarman Law Firm, L.L.P., Syracuse (Jenna W. Klucsik of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), enteredAugust 27, 2010 in Broome County, which, among other things, granted defendant's motion forsummary judgment dismissing the complaint.
In 2003, defendant, an engineering firm, entered into a contract to provide plaintiff with adesign for the rehabilitation of a bridge. Defendant delivered the plans in September 2005 andsubmitted its final bill in November 2005. The bridge was completed in October 2007. InDecember 2007, the Department of Transportation (hereinafter DOT) inspected the bridge,discovered cracking in certain structures, and issued a "Red Flag report" recommending a checkof the capbeam cantilever design. Plaintiff engaged McFarland-Johnson, Inc. (hereinafterMcFarland), another engineering firm, to perform a strength analysis of the pier cap cantilevers.In January 2008, the firm reported that the structures' strength was inadequate. In March 2008,plaintiff reported these findings to defendant and requested that it review its designcomputations. Defendant engaged a third engineering firm, Modjeski and Masters (hereinafter M& M), to review its design. M & M identified certain design errors and recommended repairs.Plaintiff asked defendant to pay for these repairs in June 2008. Thereafter, DOT found increasedcracking in the bridge structures and issued a second Red Flag report. Plaintiff again askeddefendant to contract and pay for the repair, and defendant turned the matter over to its attorneyand insurance carrier.
In April 2009, plaintiff commenced this action alleging breach of contract, negligence [*2]and professional malpractice. Defendant moved for summaryjudgment dismissing the complaint, and plaintiff cross-moved for summary judgment on theissue of defendant's liability. Supreme Court found that plaintiff's claims were barred by thethree-year limitations period for professional malpractice, granted defendant's motion, and deniedplaintiff's cross motion. Plaintiff appeals.
Initially, Supreme Court properly determined that plaintiff's claim is essentially one forprofessional malpractice and, thus, the three-year limitations period of CPLR 214 (6) applies,rather than the six-year period for breach of contract actions. Plaintiff's complaint alleges thatdefendant breached the contract by violating a contractual "duty and obligation to use ordinaryskill, care, and diligence in rendering their professional services." This claim "comes within thepurview of CPLR 214 (6), regardless of whether the theory is based in tort or in a breach ofcontract" (Rev Assembly Mem in Support, Bill Jacket, L 1996, ch 623, at 6; accord Matter of R.M. Kliment & FrancesHalsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 541-542 [2004]). Plaintiff'sargument that its breach of contract claim should survive based upon defendant's contractualobligation to correct errors in its plans was raised for the first time in an affidavit in opposition todefendant's motion for summary judgment and, thus, "cannot bar relief which is otherwiseappropriate" (Scanlon v Stuyvesant Plaza, 195 AD2d 854, 855 [1993]). Further, plaintiffhas never alleged that defendant breached that obligation or that plaintiff was damaged as a result(see Clearmont Prop., LLC v Eisner, 58 AD3d 1052, 1055 [2009]); instead, thecomplaint and record demonstrate that plaintiff's alleged damages arose from defendant's refusalto fully cover the costs of repairing the bridge. Thus, the breach of contract claim was properlydismissed as time-barred (see Matter of R.M. Kliment & Frances Halsband, Architects[McKinsey & Co., Inc.], 3 NY3d at 541-542; see also Matter of Stantec Consulting Group [Fonda-Fultonville Cent.School Dist.], 36 AD3d 1051, 1052 [2007], lv denied 9 NY3d 807 [2007]).
Plaintiff next contends that Supreme Court erred in determining that its malpractice claimaccrued no later than November 2005, arguing that the cause of action did not accrue untilconstruction of the bridge was complete. We disagree. Ordinarily, "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" (Town of Wawarsing v Camp, Dresser &McKee, Inc., 49 AD3d 1100, 1101-1102 [2008]). Plaintiff's argument regarding thetermination date is based upon a contractual provision that required defendant to "provide designresponse to unanticipated or changed field conditions, analyze and participate in proposed designchanges, and interpret design plans" if certain conditions occurred during construction. Theargument relies upon Town of Wawarsing, in which this Court found that a town'smalpractice action against an engineering firm did not accrue until the end of a 12-month periodafter substantial completion of the project, during which the parties' contract obligated the firm toprovide certain review and corrective services (id. at 1102-1104). Notably, in addition topreconstruction design responsibilities, the engineering firm in Town of Wawarsing hadmultiple contractual obligations to provide design, supervision and inspection servicesthroughout all five phases of construction, as well as additional obligations after construction wascomplete (id. at 1102-1103). Further, the payment provision at issue in that matterexplicitly recognized that certain services would be provided after final payment for thecompletion of the contract (id. at 1103). In contrast, defendant's noncontingentobligations under the contract here were limited to preconstruction design services and includedno inspection or supervisory responsibilities. After receiving final payment pursuant to thecontract in November 2005, defendant had no further obligation to provide any additionalservices unless [*3]plaintiff specifically requested them (compare Frank v Mazs Group, LLC, 30AD3d 369, 369-370 [2006]).[FN*]
"[W]e look to the parties' intent as embodied in their agreement to determine when theirprofessional relationship ended" (Town of Wawarsing v Camp, Dresser & McKee, Inc.,49 AD3d at 1102). The termination "must be judicially interpreted in light of the given situationand the responsibilities of the parties in carrying out their agreement" (Board of Educ. ofTri-Val. Cent. School Dist. at Grahamsville v Celotex Corp., 88 AD2d 713, 714 [1982],affd 58 NY2d 684 [1982]). Here, the parties' agreement, read as a whole, embodies theirintent for their professional relationship to terminate upon submission of defendant's final designor, at the latest, upon final payment for that design, except in the event of contingencies that didnot occur. Accordingly, Supreme Court properly concluded that the malpractice cause of actionaccrued, at the latest, in November 2005, when defendant submitted its final bill forpreconstruction design services.
Plaintiff next contends that the statute of limitations was tolled by the doctrine of continuousrepresentation, which "recognizes that a person seeking professional assistance has a right torepose confidence in the professional's ability and good faith, and realistically cannot be expectedto question and assess the techniques employed or the manner in which the services are rendered"(Shumsky v Eisenstein, 96 NY2d 164, 167 [2001] [citation omitted]; accord Matter of Clark Patterson Engrs.,Surveyor, & Architects, P.C. [City of Gloversville Bd. of Water Commrs.], 25 AD3d984, 986 [2006], lv denied 6 NY3d 714 [2006]). As with the continuous treatmentdoctrine applicable to medical malpractice, the relationship must be continuous, and both partiesmust expect it to continue (see Plummer v New York City Health & Hosps. Corp., 98NY2d 263, 268 [2002]). No such expectations were demonstrated here. When DOT notifiedplaintiff of the cracks in the bridge, plaintiff did not rely upon defendant's continued professionalservices, despite DOT's express recommendation of a design review; instead, plaintiff firstconsulted with McFarland, a competing engineering firm (compare Matter of Clark PattersonEngrs., Surveyor, & Architects, P.C. [City of Gloversville Bd. of Water Commrs.], 25 AD3dat 986-987). Only after obtaining McFarland's report assigning blame to defendant's inadequatedesign—four months after receiving DOT's first Red Flag report and some 2½ yearsafter final payment—did plaintiff contact defendant. Plaintiff's correspondence withdefendant thereafter was copied to its attorney (see Schloss v Albany Med. Ctr., 278AD2d 614, 615 [2000], lv denied 96 NY2d 707 [2001]), and the course of events doesnot otherwise demonstrate continued reliance on defendant's professional services and good faith.The interactions between plaintiff and defendant after the 2½-year interruption constituteda resumption, rather than a continuation, of their previous professional relationship, and so failsto establish the applicability of the doctrine (see Aulita v Chang, 44 AD3d 1206, 1210 [2007]; Fox v GlensFalls Hosp., 129 AD2d 955, 956-957 [1987]). Thus, the statute of limitations was not tolled.
Finally, plaintiff asserts that defendant is estopped from relying on the statute of limitationsas it worked and corresponded with plaintiff after discovery of the design defect. "Equitableestoppel is an extraordinary remedy which applies where a party is prevented from filing anaction within the applicable statute of limitations due to his or her reasonable reliance ondeception, fraud or misrepresentations by the other" (Pulver v Dougherty, 58 AD3d 978,[*4]979-980 [2009] [internal quotation marks, brackets andcitations omitted]; see Dombroski vSamaritan Hosp., 47 AD3d 80, 82-83 [2007]). Plaintiff did not meet its burden toestablish by clear and convincing evidence that defendant engaged in affirmative misconduct (see Cellupica v Bruce, 48 AD3d1020, 1021 [2008]). Defendant's initial cooperation with plaintiff's requests to review itsdesign calculations and devise a solution to the problem did not constitute deceptive or otherwisewrongful conduct, nor did plaintiff show that defendant took "affirmative steps to prevent. . . plaintiff from bringing a claim" (Zumpano v Quinn, 6 NY3d 666, 674 [2006]). Moreover, plaintiffdid not "demonstrate a lack of knowledge of the true facts" (Pulver v Dougherty, 58AD3d at 980). Accordingly, equitable estoppel did not act as a toll, and the action was properlydismissed as untimely.
Peters, J.P., Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: No such requests were made.