Jewish Guild for the Blind v. Senor
| Citation | 461 N.Y.S.2d 331,93 A.D.2d 764 |
| Court | New York Supreme Court Appellate Division |
| Decision Date | 21 April 1983 |
| Parties | The JEWISH GUILD FOR THE BLIND, Plaintiff-Respondent, v. Gabriel E. SENOR, P.C., et al., Defendants-Appellants. (Two Cases) Gabriel E. SENOR, P.C., et al., Third-Party Plaintiffs, v. HYDRAULIC PLUMBING & HEATING CORP., et al., Third-Party Defendants. |
L.R. Brody, New York City, for plaintiff-respondent.
J.H. Galloway, III, Scarsdale, for defendants-appellants.
Before MURPHY, P.J., and SANDLER, ROSS, KASSAL and ALEXANDER, JJ.
Order of the Supreme Court, New York County, entered on March 29, 1982, which granted the plaintiff's motion for partial summary judgment as to liability and directed that a trial be had as to the amount of damages sustained by the plaintiff is unanimously reversed on the law, and the complaint dismissed.
Judgment of the Supreme Court, New York County, entered on November 24, 1982, awarding plaintiff damages in the sum of $35,504.81 is unanimously reversed on the law and the judgment vacated without costs.
In 1974, the Jewish Guild for the Blind proposed to construct a new facility on a parcel of real property owned by it in Yonkers, New York. On May 28, 1974, it retained the defendant Gabriel E. Senor, a licensed land surveyor to provide a boundary and easements survey and a topographical survey of the Yonkers property. The individual defendant Gabriel Senor is the President and principal of the corporate defendant Gabriel E. Senor, P.C., Inc.
The survey was initially furnished to the plaintiff on or about June 26, 1974, but was subsequently revised, the last revision bearing date March 13, 1975. It was certified to "JGB Nursing Home Corporation", "The Title Guarantee Company", "New York State Department of Health", and "New York State Medical Care Facilities Finance Agency". A legend on the survey recited that "this survey is accurate and based on field study". The survey was signed by the individual defendant, Gabriel E. Senor.
The survey contained a notation that the storm drain on the property was 15 inches in diameter. However, in April of 1978, the plumbing subcontractor on the job, informed the general contractor that this storm drain was really only 12 inches. It appears that the design of the drainage system for the new facility was based, in part, on the data contained on the survey that the storm drain was 15 inches in diameter. Thus when the error was discovered, plaintiff contends it became necessary to modify the design and provide for the installation of a new storm drain.
The instant action was commenced on March 19, 1981, by the service of a summons and complaint, alleging three causes of action: (1) breach of contract; (2) a claim for the negligent discharge of duty; and (3) professional malpractice. In addition to generally denying the allegations of the complaint, the defendants asserted four affirmative defenses: (1) lack of personal jurisdiction; (2) failure to state a cause of action; (3) that the first cause of action for breach of contract was barred by the six year statute of limitations; and (4) that the two causes of actions alleging negligent discharge of duty and professional malpractice were barred by the three year statute of limitations.
Plaintiff thereafter moved for summary judgment on the issue of liability and that motion was granted. The Court rejected the defendants' argument that they only certified boundary and easement lines on the survey and not the size of the pipes and that the data regarding those underground pipes noted on the survey were for informational purposes only. The Court implicitly found that the defendants had failed to accurately determine the true dimensions of the storm drain.
While various issues are presented on this appeal, that which we find to be dispositive is the determination as to when the plaintiff's claim arose, and thus whether or not plaintiff's claims were time-barred.
Plaintiff, relying on the decision of ...
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