Forest Medical Professional Condominium v. Tiburzi

• Decision Date: 28 April 1995
• Parties: FOREST MEDICAL PROFESSIONAL CONDOMINIUM, Appellant, v. Davis R. TIBURZI, D.R.T. Construction Company, Inc., D.R.T. Development Corp. and Barden & Robeson Corporation, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 501

627 N.Y.S.2d 501

214 A.D.2d 962

FOREST MEDICAL PROFESSIONAL CONDOMINIUM, Appellant, v. Davis R. TIBURZI, D.R.T. Construction Company, Inc., D.R.T Development Corp. and Barden & Robeson Corporation, Respondents.

Supreme Court, Appellate Division Fourth Department.

April 28, 1995.

Blair & Roach (David A. Stern, of counsel), Buffalo, for appellant.

Lyman and Lyman (Nathan M. Lyman, of counsel), Albion, for respondents.

Before DENMAN, P.J., and GREEN, FALLON, BALIO and BOEHM, JJ.

MEMORANDUM:

Supreme Court properly granted summary judgment dismissing the complaint against defendants Davis R. Tiburzi, D.R.T Development Corp. and Barden & Robeson Corporation. Plaintiff failed to controvert evidence that D.R.T. Development Corp. was incorporated on April 10, 1990, and thus could not have been involved in any construction or repair work performed prior to 1990. Although plaintiff submitted hearsay evidence that Barden & Robeson Corporation may have been involved in the initial construction of the building, hearsay alone is not sufficient to defeat a motion for summary judgment (see, Callari v. Pellitieri, 130 A.D.2d 935, 936, 516 N.Y.S.2d 371). Although Tiburzi is the President of defendant D.R.T. Construction Company, Inc. (D.R.T. Construction), there is no proof that Tiburzi performed any of the alleged acts in his personal capacity.

We reject the contention that summary judgment should have been denied because plaintiff had no opportunity to conduct discovery concerning each defendant's role in the construction and repair of the building. Plaintiff had a year in which to conduct that discovery (see, Meath v. Mishrick, 68 N.Y.2d 992, 994-995, 510 N.Y.S.2d 560, 503 N.E.2d 115) and has failed to show that facts pertaining to that issue are within the exclusive knowledge of defendants (see, CPLR 3212[f]; People v. United Funding, 106 A.D.2d 846, 847, 484 N.Y.S.2d 245, lv. denied 64 N.Y.2d 609, 489 N.Y.S.2d 1026, 478 N.E.2d 210).

The court properly dismissed the complaint against D.R.T. Construction, because the causes of action against it for breach of contract, breach of warranty and fraud are time barred. The six-year Statute of Limitations applies to causes of action for breach of contract, which accrue upon completion of performance, i.e., upon actual physical completion of the work (Phillips Constr. Co. v. City of New York, 61 N.Y.2d 949, 951, 475 N.Y.S.2d 244, 463 N.E.2d 585, rearg. denied 62 N.Y.2d 646, 476 N.Y.S.2d 1028, 464 N.E.2d 990; Sears, Roebuck & Co. v. Enco Assocs., 43 N.Y.2d 389, 394, 401 N.Y.S.2d 767, 372 N.E.2d 555). The record reveals that construction was completed in 1984 and that this action was commenced in 1992. There is no proof that D.R.T. Construction failed to construct the building in accordance with the...