Board of Managers of Yardarm Beach Condominium v. Vector Yardarm Corp.

• Decision Date: 26 March 1985
• Citation: 487 N.Y.S.2d 17,109 A.D.2d 684
• Parties: BOARD OF MANAGERS OF YARDARM BEACH CONDOMINIUM, etc., et al., Plaintiffs-Respondents, v. VECTOR YARDARM CORPORATION, et al., Defendants-Respondents, David K. Specter, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 17

487 N.Y.S.2d 17

109 A.D.2d 684

BOARD OF MANAGERS OF YARDARM BEACH CONDOMINIUM, etc., et al., Plaintiffs-Respondents, v. VECTOR YARDARM CORPORATION, et al., Defendants-Respondents David K. Specter, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

March 26, 1985.

G.M. Axenfeld, New York City, for plaintiffs-respondents.

J.L. Schapira, New York City, for defendants-respondents.

P. Ambos, New York City, for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, ASCH and FEIN, JJ.

MEMORANDUM DECISION.

Order entered August 11, 1983 in Supreme Court, New York County, denying defendant Specter's motion to dismiss the third cause of action, is unanimously reversed on the law and the motion is granted, without costs.

In January of 1974 defendant Shapiro contracted with defendant Specter, an architect, for the design and construction of certain oceanfront condominiums, as well as other work not here pertinent. The condominiums were completed and a certificate of occupancy issued on November 15, 1976. In September of 1979 the owners began to notice excessive deterioration of the condominium complex. Plaintiffs, who represented the owners, commenced this action on June 23, 1982, seeking damages from Shapiro and his realty corporations upon the grounds that they breached their contract and warranties regarding the quality of construction, thereby damaging the owners in the amount of $10 million. In their third cause of action the plaintiffs alleged that as a result of defendant Specter's "willful, reckless and intentional negligence, without any negligence on the part of plaintiffs contributing thereto, the defendant failed to properly design, supervise and make reasonable inspections of the condominium facilities and premises."

Specter moved for dismissal of the third cause of action on the ground that it was barred by the statute of limitations, which provides that a malpractice action must be commenced within three years of the occurrence of the cause of action. Defendant Specter maintained that the construction project was completed upon the issuance of the certificate of occupancy, which was on November 15, 1976, and therefore the statute of limitations for a malpractice action expired on November 13, 1979.

Plaintiffs argued that the third cause of action is one of simple negligence, not malpractice, because plaintiffs had no contractual relationship with defendant Specter. Since the statute of limitations on negligence is deemed to occur on the date of the injury, the plaintiffs allege that the cause of action arose in September of 1979, when the owners began to notice the excessive deterioration of the condominium complex. Applying this three year statute, plaintiffs argue that it expired in September of 1982, approximately 2 months after the complaint was served upon the clerk. Special Term agreed and denied Specter's motion for dismissal in the third cause of action, finding that the cause of action pleaded negligence, and therefore the cause of action arose in September 1979, and that the action was timely commenced against Specter.

We would reverse and grant Specter's motion to dismiss the third cause of action. Special Term was correct in determining that the relationship between the plaintiffs and Specter mandated viewing the action in terms of a negligence rather than a malpractice standard. However, the court erred in determining that the cause of action accrued in September 1979 when the plaintiffs noticed the excessive deterioration of the complex.

In determining when a cause of action accrues in...