Board of Educ. of Hudson City School Dist. v. Thompson Const. Corp.
| Citation | 111 A.D.2d 497,488 N.Y.S.2d 880 |
| Parties | , 24 Ed. Law Rep. 1224 BOARD OF EDUCATION OF the HUDSON CITY SCHOOL DISTRICT, Respondent-Appellant, v. THOMPSON CONSTRUCTION CORPORATION, Defendant and Third-Party Plaintiff-Respondent, and Sargent, Webster, Crenshaw & Folley, Appellant; Skyway Roofing Company, Inc., et al., Third-Party Defendants, and Philip Carey Corporation et al., Third-Party Defendants-Appellants-Respondents. |
| Decision Date | 09 May 1985 |
| Court | New York Supreme Court Appellate Division |
Donohue, Donohue & Sabo, P.C., Albany (Fred J. Hutchison, Albany, of counsel), for appellant.
Rapport, Meyers, Griffen & Whitbeck, Hudson (Victor M. Meyers, Hudson, of counsel), for respondent-appellant.
Couch & Howard, P.C., Albany (Sharon Couch DeBonis, Albany, of counsel), for defendant and third-party plaintiff-respondent.
Hesson, Ford, Sherwood & Whalen, Albany (Donald P. Ford, Jr., Albany, of counsel), for third-party defendants-appellants-respondents.
Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.
Cross appeals from that part of an order of the Supreme Court at Special Term, entered February 14, 1984 in Columbia County, which (1) denied defendant Sargent, Webster, Crenshaw & Folley's motion for summary judgment dismissing the complaint and granted plaintiff's motion for summary judgment dismissing said defendant's third affirmative defense, (2) dismissed the cross claim asserted against defendant Thompson Construction Corporation without prejudice to the commencement of a third-party action, and (3) granted defendant Thompson Construction Corporation's cross motion for summary judgment dismissing the complaint and all other motions and third-party actions against said defendant.
On March 21, 1966, plaintiff engaged defendant Sargent, Webster, Crenshaw & Folley (Sargent), an architectural partnership, to prepare plans and specifications for a new high school building and to supervise its construction. The contract was in the usual and traditional form with the exception that it included the additional requirement that Sargent inspect the building three times subsequent to its completion at the rate of once per year and to advise plaintiff as to any measures required to remedy possible defects in the building. In early 1969, plaintiff employed defendant Thompson Construction Corporation (Thompson) as the general contractor for the construction of the building. Thereafter, the work progressed and plaintiff made its final payment to Thompson on September 27, 1972, after Sargent had issued its final certificate of completion on September 18, 1972. Shortly thereafter the roof began to leak. Quite some time later, plaintiff commenced this action against the architect and the general contractor for a number of causes of action but primarily, in our opinion, for breach of contract and warranty to recover for what it claimed to be a completely defective roof.
The merits of the action are not before us at this time. The only issues concerning us are the application of the Statute of Limitations to the commencement of the actions against the two defendants. The earliest date established in the record as the commencement of the action against Sargent was October 26, 1979. The summons was served on Thompson a short time thereafter, but for purposes of this appeal the difference between the two dates is of no significance.
Both primary defendants moved for summary judgment dismissing the complaint as barred by the Statute of Limitations. The motion was denied as to Sargent but granted as to Thompson. These cross appeals ensued. Because of the factual and legal dissimilarity, we must address each motion separately.
A cause of action against an architect for breach of his contract to design and oversee the construction of a structure is governed by the six-year Statute of Limitations set forth in CPLR 213(2) (see Sears, Roebuck & Co. v. Enco Assoc., 43 N.Y.2d 389, 395, 401 N.Y.S.2d 767, 372 N.E.2d 555). Ordinarily, a cause of action against an architect for breach of his contract accrues on the date the final certificate of completion is issued by the architect (State of New York v. Lundin, 60 N.Y.2d 987, 989, 471 N.Y.S.2d 261, 459 N.E.2d 486). However, there were certain admitted facts which Special Term relied upon in concluding that the Statute of Limitations did not begin to run against the architect in this case, Sargent, until at least two years...
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