Broome County v. Vincent J. Smith, Inc.

• Decision Date: 14 August 1974
• Citation: 78 Misc.2d 889,358 N.Y.S.2d 998
• Court: New York Supreme Court
• Parties: COUNTY OF BROOME, Plaintiff, v. VINCENT J. SMITH, INC. and George T. Lacey, d/b/a A. T. Lacey & Sons, Defendants.

Page 998

358 N.Y.S.2d 998

78 Misc.2d 889

COUNTY OF BROOME, Plaintiff, v. VINCENT J. SMITH, INC. and George T. Lacey, d/b/a A. T Lacey & Sons, Defendants.

Supreme Court, Special Term, Broome County.

Aug. 14, 1974.

John E. Murray, Binghamton, for plaintiff.

Levene, Gouldin & Thompson, Binghamton (Carlton F. Thompson, Binghamton, of counsel), for defendant, Vincent J. Smith, Inc. Night, Keller, O'Connor, Ball & McDonough, Binghamton (Thomas F. O'Connor, Binghamton, of counsel), for defendant, George T. Lacey, d/b/a A. T. Lacey & Sons.

Chernin & Gold, Binghamton (Leo P. Katzin, Binghamton, of counsel), for third-party defendant, Protective Coatings, Inc.

Hinman, Howard & Kattell, Binghamton (James L. Chivers, Binghamton, of counsel), for third-party defendant, Binghamton Service & Painting Co., Inc.

RICHARD F. KUHNEN, Justice.

On April 27, 1966, plaintiff, County of Broome, contracted with defendant architect, George T. Lacey, for the design of a library building at Broome Community College and for the supervision of its construction. Pursuant to this agreement, architect Lacey prepared plans and specifications for the building and subsequently, on June 6, 1966, a contract was let to defendant, Vincent J. Smith, Inc., for the construction. Work was commenced shortly thereafter and on July 10, 1968 the construction of the project was completed and the County made final payment to the contractor.

Coincidentally, on the same July 10, 1968 date leaks began to appear in the newly completed library roof. Defendant Lacey was informed of this fact and for some time thereafter he negotiated with the contractor and the roofing subcontractor with respect to this problem. Several remedial tactics were undertaken, but none proved successful as the leaks continued. During this period defendant Lacey communicated regularly with County officials and assured them that with the corrective and repair work being performed 'the resulting roof will equal the original plans and specifications.' Finally, dissatisfied with the results of the corrective measures, plaintiff County commenced this action on September 3, 1971. Defendant Lacey now requests that the action against him be dismissed on the ground that the statute of limitations has expired.

Although the relationship between these parties originated in contract, the gravamen of the action against defendant Lacey is professional malpractice and the applicable limitation period is three years. CPLR § 214; Klein v. Parke-Bernet Galleries, Inc., 21 A.D.2d 772, 250 N.Y.S.2d 656; Glens Falls Insurance Company v. Reynolds, 3 A.D.2d 686, 159 N.Y.S.2d 95. The general rule in this state is that a cause of action for malpractice accrues at the time of the wrongful act or omission by the professional. Conklin v. Draper, 254 N.Y. 620, 173 N.E. 892; Schwartz v. Heyden Newport Chemical Corporation, 12 N.Y.2d 212, 237 N.Y.S.2d 714, 188 N.E.2d 142. Under this rule the plaintiff's cause of action would be time-barred for, as defendant correctly contends, the specific acts of malpractice alleged in plaintiff's complaint occurred more than three years prior to the date upon which this action was commenced.

There are, however, two exceptions to the general rule governing the accrual of a cause of action of this nature: the 'foreign object' exception which is limited strictly to medical malpractice and the 'continuous treatment' exception. The latter doctrine holds that when a course of treatment by a professional which includes wrongful acts and omissions has been continuous and is related to the original condition or complaint, the claim accrues at the end of the treatment. Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777.

Defendant points out that the New York courts have never applied the 'continuous treatment' exception to architect malpractice cases. While true, this fact is of little moment for thus far the courts of this state have not been directly confronted with this issue. The problem was alluded to in the recent case of Sosnow v. Paul, 43 A.D.2d 978, 352 N.Y.S.2d 502, but the court there avoided making a determination on this issue. After deciding that the plaintiff's action for malpractice against an architect was time-barred under the general rule, the court went on to state In dicta that even if the doctrine of 'continuous treatment' did apply to this situation, plaintiff's action would be untimely for it had not been commenced within three years of the termination of the professional relationship.

The exception was first applied by the Court of Appeals to medical malpractice in the case of Borgia v. City of New York, Supra. In that case an infant plaintiff entered the defendant's hospital on October 10, 1956 and was discharged therefrom on February 14, 1958. The alleged malpractice occurred in October of 1956, but notice of claim against the City under General Municipal Law § 50--e was not filed until April 18, 1958. The court held that since the infant had been in the continuous care and treatment of the defendant hospital from the time of the original injury, the claim of malpractice did not accrue until the treatment ended on February 14, 1958 and the notice of claim filed sixty-three days thereafter was therefore timely.

In approving this exception the court stressed the inherent fairness of this rule in the context of the doctor-patient relationship. This relationship is basically one of trust and confidence and in most cases the patient has little or no knowledge of medicine. He, therefore, must depend exclusively on his physician and must have absolute trust in his judgment. Under such circumstances 'little argument is needed to prove the proposition that the 'continuous treatment' theory is the fairer one. It would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician . . .' Borgia v. City of New York, Supra. Moreover, under the contrary rule a physician, aware of his malpractice,...