| Regency Club at Wallkill, LLC v Appel Design Group,P.A. |
| 2013 NY Slip Op 08067 [112 AD3d 603] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Regency Club at Wallkill, LLC,Respondent, v Appel Design Group, P.A., et al.,Appellants. |
—[*1] Jacobwitz & Gubits, LLP, Walden, N.Y. (Gerald N. Jacobowitz of counsel), forrespondent.
In an action to recover damages for professional malpractice and breach of contract,the defendants appeal, as limited by their brief, from so much of an order of the SupremeCourt, Orange County (Onofry, J.), dated November 21, 2011, as denied that branch oftheir motion which was pursuant to CPLR 3211 (a) (2) to dismiss, for lack of subjectmatter jurisdiction, so much of the complaint as purportedly sought indemnification orcontribution for violations of Executive Law § 296, and denied that branch of theirmotion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint astime-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against Appel Design Group, P.A., T.M. DePuyEngineering & Land Surveying, P.C., Laurance Appel, and Thomas DePuy to recoverdamages for professional malpractice and breach of contract. The complaint alleged thatthe plaintiff is the owner of a 132-unit multiple dwelling project (hereinafter the Project)located in the Town of Wallkill. The complaint alleged that the plaintiff "secured all thenecessary land use approvals from the Town of Wallkill to allow the construction of theProject," and that the Project was, among other things, required to be constructed inaccordance with accessibility design and construction requirements of the New YorkState Human Rights Law (see Executive Law § 290 et seq.), theFair Housing Amendments Act of 1988 (see 42 USC §§3601-3619), and the Americans with Disabilities Act (see 42 USC § 12181et seq.; hereinafter collectively the accessibility design requirements).
The plaintiff alleged that it contracted with the defendants T.M. DePuy Engineering& Land Surveying, P.C., and Thomas DePuy (hereinafter together the DePuy defendants)to "provide engineering and surveying services to support the application made by theplaintiff to the Town of Wallkill for the necessary land use approvals and provideservices during construction." The complaint alleged that the DePuy defendantsundertook to perform their obligations under the agreement by performing services thatincluded the preparation of "plans and specifications" and the provision of "engineeringadvice and supervision during the course of construction of the [P]roject."[*2]
The plaintiff similarly alleged that it contractedwith the defendants Appel Design Group, P.A., and Laurance Appel (hereinafter togetherthe Appel defendants) to "provide architectural services to support the application madeby the plaintiff to the Town of Wallkill for the necessary land use approvals and provideservices during construction." The complaint alleged that the Appel defendantsundertook to perform their obligations under the agreement by performing services thatincluded the preparation of "plans and specifications" and the provision of "architecturaladvice and supervision during the course of construction of the [P]roject."
The complaint asserted that construction of the Project was commenced on or aboutFebruary 7, 2003, and completed on or about November 23, 2004. However, it allegedthat on or about September 22, 2008, the plaintiff received notice that the office of theNew York State Attorney General was undertaking an investigation of the Project toensure compliance with applicable "rules, laws, regulations and statutes relating to accessand other activities for persons with [disabilities]." After the investigation, an Assuranceof Discontinuance was issued (see Executive Law § 63 [15]), whichrequired the plaintiff to, among other things, "[r]etrofit the apartments and clubhouse inthe complex" and "[a]lter site conditions and infrastructure improvements." The plaintiffalleged that it incurred significant costs in order to remain in compliance with theAssurance of Discontinuance.
The complaint asserted two causes of action against the Appel defendants. The firstcause of action sought to recover damages for professional malpractice, alleging that theAppel defendants failed "to undertake their responsibilities . . . with thatdegree of care, skill and professionalism expected of professionals practicing architecturewithin the State of New York." The second cause of action sought to recover damagesfor breach of contract, alleging that the Appel defendants owed a contractual duty toprovide design and construction services in compliance with the accessibility designrequirements and that they breached that duty.
The complaint also asserted two causes of action against the DePuy defendants. Thethird cause of action sought to recover damages for professional malpractice, allegingthat the DePuy defendants failed "to undertake their responsibilities with that degree ofcare, skill and professionalism expected of professionals practicing engineering withinthe State of New York." The fourth cause of action sought to recover damages for breachof contract, alleging that the DePuy defendants owed a contractual duty to provide designand construction services in compliance with the accessibility design requirements andthat they breached that duty.
The defendants subsequently moved to dismiss the complaint pursuant to CPLR3211 (a) (2) on the ground that the court lacked subject matter jurisdiction over thecauses of action asserted in the complaint and pursuant to CPLR 3211 (a) (5) on theground that the causes of action asserted in the complaint were time-barred. The SupremeCourt granted that branch of the defendants' motion which was to dismiss the complaintfor lack of subject matter jurisdiction to the extent that the complaint could be construedso as to, in effect, seek indemnification or contribution for violations of the Fair HousingAmendments Act of 1988 or the Americans with Disabilities Act. The court denied theremaining branch of the defendants' motion, concluding, inter alia, that there werequestions of fact as to whether the statute of limitations had expired with respect to thecauses of action to recover damages for professional malpractice and breach of contract.
The defendants appeal from so much of the order as denied that branch of theirmotion which was pursuant to CPLR 3211 (a) (2) to dismiss, for lack of subject matterjurisdiction, so much of the complaint as purportedly sought indemnification orcontribution for violations of Executive Law § 296, and as denied that branch oftheir motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint astime-barred.
"[A]n action to recover damages for malpractice, other than medical, dental orpodiatric malpractice, regardless of whether the underlying theory is based in contract ortort" is subject to a three-year statute of limitations (CPLR 214 [6]; see Matter of R.M. Kliment &Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 541[2004]). "A cause of action to recover damages for professional malpractice. . . for defective design or construction accrues upon the actual [*3]completion of the work to be performed and the consequenttermination of the professional relationship" (Frank v Mazs Group, LLC, 30 AD3d 369, 369-370[2006]). However, a professional malpractice cause of action asserted against an architector engineer may be tolled under the "continuous representation" doctrine if the plaintiffshows its reliance upon a continued course of services related to the original professionalservices provided (see SendarDev. Co., LLC v CMA Design Studio P.C., 68 AD3d 500, 504 [2009]; Matter of Clark Patterson Engrs.,Surveyor, & Architects, P.C. [City of Gloversville Bd. of Water Commrs.], 25 AD3d984, 987 [2006]; 860 FifthAve. Corp. v Superstructures—Engrs. & Architects, 15 AD3d 213,213-214 [2005]).
The "continuous representation" doctrine, as applied to professionals includingarchitects and engineers, "recognizes that a person seeking professional assistance has aright to repose confidence in the professional's ability and good faith, and realisticallycannot be expected to question and assess the techniques employed of the manner inwhich the services are rendered" (Greene v Greene, 56 NY2d 86, 94 [1982];see Shumsky v Eisenstein, 96 NY2d 164, 167 [2001]; City of Binghamton v Hawk Eng'gP.C., 85 AD3d 1417, 1419-1420 [2011]; Matter of Clark Patterson Engrs.,Surveyor, & Architects, P.C. [City of Gloversville Bd. of Water Commrs.], 25 AD3dat 987). The doctrine applies when a plaintiff shows that he or she relied upon acontinuous course of services related to the particular professional duty allegedlybreached (see Shumsky v Eisenstein, 96 NY2d at 168; Sendar Dev. Co., LLCv CMA Design Studio P.C., 68 AD3d at 504).
Not only must the recurrent performance of professional services be specificallyrelated to the matter upon which the alleged malpractice is based (see Hall & Co. vSteiner & Mondore, 147 AD2d 225, 228-229 [1989]), but the services must bedeemed continuous within the meaning of the tolling doctrine (see Sendar Dev. Co.,LLC v CMA Design Studio P.C., 68 AD3d at 503; see Gomez v Katz, 61 AD3d108, 112 [2009]). Continuity of representation may be found to exist where theprofessional and the client explicitly contemplate the periodic performance ofprofessional services in the future (see Town of Wawarsing v Camp, Dresser & McKee, Inc., 49AD3d 1100, 1102-1103 [2008]; see also Gomez v Katz, 61 AD3d at 112).
The law recognizes that the supposed completion of the contemplated work does notpreclude application of the continuous representation toll if inadequacies or otherproblems with the contemplated work timely manifest themselves after that date and theparties continue the professional relationship to remedy those problems (see Matter ofClark Patterson Engrs., Surveyor, & Architects, P.C. [City of Gloversville Bd. of WaterCommrs.], 25 AD3d at 987; Board of Educ. of Hudson City School Dist. vThompson Constr. Corp., 111 AD2d 497, 498-499 [1985]; see also Gomez vKatz, 61 AD3d at 112). In this regard, a motion to dismiss pursuant to CPLR 3211(a) (5) will be denied unless the facts establish that a gap between the provision ofprofessional services on the particular matter is so great that the representation cannot bedeemed continuous as a matter of law (see Gomez v Katz, 61 AD3d at 116-117).
Here, the DePuy defendants submitted evidence demonstrating that the Project wassubstantially completed on July 31, 2007. The Appel defendants submitted evidenceindicating that their work on the Project was completed, and that they stopped providingservices to the plaintiff, on March 2, 2006. It is uncontested that this action wascommenced by the filing of the summons and complaint dated December 15, 2010, andsince the defendants demonstrated that this action was not commenced within three yearsof the completion of the Project or their completion of the contemplated professionalservices with respect to the Project, they sustained their initial burden of demonstratingthat the causes of action in the complaint were time-barred (see CPLR 214 [6];Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.],3 NY3d at 541; Frank v Mazs Group, LLC, 30 AD3d at 369-370; seegenerally CPLR 3018 [b]; Martin v Edwards Labs., Div. of Am. Hosp. SupplyCorp., 60 NY2d 417, 428 [1983]; 1B NY PJI3d 2:149, Introductory Statement at 39[2013]).
However, as the plaintiff correctly contends, it raised a question of fact as to whetherthe continuous representation doctrine may be applied so as to toll the statute oflimitations (see generally Connell v Hayden, 83 AD2d 30, 39 [1981]). In thisregard, the plaintiff submitted evidence indicating that the defendants providedprofessional services to the plaintiff to remedy the [*4]deficiencies uncovered in connection with the AttorneyGeneral's investigation. An affidavit from one of the plaintiff's managing members statedthat the defendants continued to provide professional services with respect to the Projectbetween July 31, 2007, and April 5, 2010, when the plaintiff reached a settlement withthe Attorney General's office. Since there is conflicting evidence as to when thedefendants provided professional services to the plaintiff in connection with the Project,and since none of the undisputed gaps in the provision of those services renders thecontinuous representation doctrine inapplicable as a matter of law (cf. Gomez vKatz, 61 AD3d at 116-117), the Supreme Court properly denied that branch of thedefendants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint astime-barred (see Connell v Hayden, 83 AD2d at 39; Hauppauge Union FreeSchool Dist. v Smith Assoc., 216 AD2d 354, 355 [1995]; see also Matter ofClark Patterson Engrs., Surveyor, & Architects, P.C. [City of Gloversville Bd. of WaterCommrs.], 25 AD3d at 987). The issue of whether the continuous representationdoctrine may be applied to this case remains a question of fact (see Bartolo vMonaco, 202 AD2d 535, 536 [1994]).
The defendants' remaining contention, based on the issue of subject matterjurisdiction, is without merit. The fact that the complaint cites the defendants' allegedfailure to take into account the New York Human Rights Law as particular instances ofconduct that deviated from the applicable standard of care, or constituted a breach of thealleged agreements, does not render those causes of action improper claims for indemnityor contribution (accord Matter of R.M. Kliment & Frances Halsband, Architects[McKinsey & Co., Inc.], 3 NY3d at 542; PJI 2:153). Skelos, J.P., Cohen, Miller andHinds-Radix, JJ., concur.