Cubito v. Kreisberg

• Decision Date: 13 August 1979
• Citation: 419 N.Y.S.2d 578,69 A.D.2d 738
• Parties: Rose CUBITO, Plaintiff-Respondent, v. Gerald KREISBERG, etc., et al., Defendants-Respondents, Gindele & Johnson, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 578

419 N.Y.S.2d 578

69 A.D.2d 738

Rose CUBITO, Plaintiff-Respondent, v. Gerald KREISBERG, etc., et al., Defendants-Respondents, Gindele & Johnson, Appellant, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

Aug. 13, 1979.

Davis & Davis, New York City (Andrew P. Davis and Richard T. Andrias, New York City, of counsel), for appellant.

Harold M. Foster, New York City (William F. McNulty and Anthony J. McNulty, New York City, of counsel), for defendants-respondents.

Finkelstein, Mauriello, Kaplan & Levine, Newburgh (Benjamin J. Fried, Newburgh, of counsel), for plaintiff-respondent.

Before HOPKINS, J. P., and LAZER, RABIN and GULOTTA, JJ.

HOPKINS, Justice Presiding.

The plaintiff, a tenant in an apartment house, fell in the laundry room on October 30, 1974. On October 6, 1977 she brought this action to recover damages for personal injuries based on the defendants' negligence. The complaint alleges that the defendant Gindele & Johnson was the architect which so negligently planned and designed the construction of the laundry room that water collected on the floor, causing the plaintiff's injuries.

Gindele & Johnson moved to dismiss the action on the ground that it was barred by the Statute of Limitations (CPLR 214, subd. 6). The basis of its motion was that it had completed all its services on May 7, 1973, when the certificate of final inspection was sent to the owner, and that, consequently, more than four years had elapsed when the plaintiff's action was commenced.

Special Term denied the motion, holding that it would be unreasonable to apply the statute so as to extinguish a claim against the architect for its negligence prior to the time that the injury had been sustained or that an action could have been brought to recover damages for the injury (Cubito v. Kreisberg, 94 Misc.2d 56, 404 N.Y.S.2d 69).

We affirm. The Statute of Limitations applicable to the liability of an architect for injuries suffered by third parties due to his negligence runs from the date of the injury.

I

Since the Statute of Limitations is a defense in the nature of confession and avoidance, we need not treat the facts at length save as they are relevant to the question of law raised by the defendant architect. We are told by the architect that it had been hired by the New York State Urban Development Corporation (UDC) to furnish services for a housing project known as the Lake Street Houses in Orange County. The project was owned by a partnership formed by the defendants Sprain Construction Company (Sprain) and Gerald Kreisberg (Kreisberg). The architect says that it had performed its work by completing plans for the project on November 26, 1969. The construction of the project was substantially completed by July 13, 1972, and a certificate of occupancy was issued on April 27, 1973. On May 3, 1973 the architect, jointly with UDC, certified to the owner that they found by inspection that the work under the construction contract had been fully performed; their certificate was sent to Sprain and Kreisberg on May 7, 1973.

The architect contends that since that date it has had no involvement with the project. It stresses, in particular, that it has had nothing to do with the maintenance and repair of the laundry room or its facilities. Hence, it argues that the three-year limitation prescribed for malpractice actions generally (as distinguished from medical malpractice) applies to the plaintiff's action (CPLR 214, subd. 6). It urges that the date of completion of its work marks the time when the statute begins to run, and the plaintiff's action was brought well beyond the three-year period and is therefore barred (cf. Sosnow v. Paul, 43 A.D.2d 978, 352 N.Y.S.2d 502, affd. 36 N.Y.2d 780, 369 N.Y.S.2d 693, 330 N.E.2d 643; Matter of Paver & Wildfoerster (Catholic High School Assn.), 38 N.Y.2d 669, 382 N.Y.S.2d 22, 345 N.E.2d 565; Sears Roebuck & Co. v. Enco Assoc., 43 N.Y.2d 389, 401 N.Y.S.2d 767, 372 N.E.2d 555).

Moreover, the architect contends that Special Term erroneously based its decision on MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, and Inman v. Binghamton Housing Auth., 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895. In neither of these cases, it says, was liability predicated on the rendition of professional services sanctioned, and public policy soundly differentiates between a manufacturer of a defective product and a purveyor of services, such as an architect.

II

Since the defendant architect largely rests its argument on the statute, we begin by an analysis of its provisions. The statute provides for time periods for the institution of suits linked to the character of the action. As malpractice essentially is a special form of negligent conduct, it is instructive to note that the statute deals severally with types of actions grounded on negligence.

CPLR 214 (subd. 5) provides that an action to recover damages for personal injuries, ¹ including an action based on the negligence of the defendant (Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 214:5, p. 429) must be commenced within three years. CPLR 214 (subd. 6) provides that an action to recover damages for malpractice, other than medical malpractice, similarly must be brought within three years. CPLR 214-a provides that an action for medical malpractice must be commenced within two years and six months. Thus, the statute formally treats malpractice actions differently from other actions based on negligence in limiting the time in which the action must be instituted. Even so, for our purposes in this appeal it is to be noted that the statute in dealing with an architect's malpractice makes no material difference from the conventional negligence action, since it prescribes the same three-year limitation.

Nevertheless, it is useful to recognize as an aid in analysis that malpractice, in its strict sense, means the negligence of a member of a profession in his relations with his client or patient. In this case the plaintiff is not, and never has been, in a professional relation with the architect. Though at times the term has been employed in a broad sense, particularly where disciplinary proceedings have been the subject of discussion (Matter of Clark, 184 N.Y. 222, 77 N.E. 1; Matter of Silkman, 88 App.Div. 102, 104, 84 N.Y.S. 1025, 1026), we think that malpractice in the statutory sense describes the negligence of a professional toward the person for whom he rendered a service, and that an action for malpractice springs from the correlative rights and duties assumed by the parties through the relationship. On the other hand, the wrongful conduct of the professional in rendering services to his client resulting in injury to a party outside the relationship is simple negligence.

The importance of this distinction becomes evident in considering the measurement of time which the statute provides. CPLR 203 (subd. a) states that the time within which an action must be commenced shall be computed from the time the cause of action accrued to the time the claim is interposed. The fulcrum of the statute is thus the meaning to be attached to the term of "accrual of a cause of action" a meaning which has been supplied by judicial gloss.

III

Since the statute affords no definition, we must presume that the content of the meaning of an accrual of a cause of action has been left by the Legislature to judicial determination (see City of New Bedford v. Lloyd Inv. Assoc., 363 Mass. 112, 292 N.E.2d 688; Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170). In Schmidt v. Merchants Despatch Transp. Co. (270 N.Y. 287, 300, 200 N.E. 824, 831), a case involving a claim based on negligence, not malpractice, the Court of Appeals held that the accrual of the cause of action arose when the wrongful invasion of personal rights occurred by reason of conduct of the wrongdoer. That the injury suffered may not be perceived until much later was said to constitute no escape from the statute, though hardship may be the outcome, for "such occasional hardship is outweighed by the advantage of outlawing stale claims" (Id., at p. 302, 200 N.E. at pp. 827-28). There the plaintiff was barred by the statute, when he had inhaled dust while employed by the defendant and contracted lung disease as a result more than three years later. This rule in actions based on negligence still holds true (Schwartz v. Heyden Newport Chem. Corp., 12 N.Y.2d 212, 216-217, 237 N.Y.S.2d 714, 716-77, 188 N.E.2d 142, 144-145).

Where exceptions have been hewn from the rule, the cases in point involved a professional relationship between the parties, as, for example, a continuing service rendered by a member of a profession (Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777; Siegel v. Kranis, 29 A.D.2d 477, 288 N.Y.S.2d 831; County of Broome v. Vincent J. Smith, Inc., 78 Misc.2d 889, 358 N.Y.S.2d 998), or an express promise to achieve a specific result (Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330; Boecher v. Borth, 51 A.D.2d 598, 377 N.Y.S.2d 781), or in medical malpractice, where a foreign object is discovered at the site of an operation (Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871), or a physician concealed his negligence (Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713). In these exceptions the statute was construed to mark the beginning of the measurement from the later date.

Moreover, difficulties in applying the statute have arisen when causes of action, not sounding in negligence, but brought for breach of warranty, have been under consideration (see, e. g., Mendel v. Pittsburgh Plate Glass Co., 25 N.Y.2d 340, 305 N.Y.S.2d 490, 253 N.E.2d 207, overruled in Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275; Martin v. Dierck Equip. Co., 43 N.Y.2d 583, 403 N.Y.S.2d 185, 374 N.E.2d 97; Dickey v. Lockport Prestress, 52 A.D.2d 1075...