Merritt v. Hooshang Const., Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MILLER
• Citation: Merritt v. Hooshang Const., Inc., 628 N.Y.S.2d 792, 216 A.D.2d 542 (N.Y. App. Div. 1995)
• Decision Date: 26 June 1995
• Parties: Richard MERRITT, Appellant-Respondent, v. HOOSHANG CONSTRUCTION, INC., Respondent-Appellant, et al., Respondents.

Page 792

628 N.Y.S.2d 792

216 A.D.2d 542

Richard MERRITT, Appellant-Respondent, v. HOOSHANG CONSTRUCTION, INC., Respondent-Appellant, et al Respondents.

Supreme Court, Appellate Division Second Department.

June 26, 1995.

Richard Merritt, Lido Beach, appellant-respondent pro se.

Charnin & Trabucchi, Garden City (Aldo A. Trabucchi, of counsel), for respondent-appellant Hooshang Const., Inc., and respondent Hooshang Ahdoot.

Morris, Graham, Stephens & McMorrow, Westbury (John C. Stetson, of counsel), for respondents James Thomas Martino and James Thomas Martino & Associates.

Ronald J. Levinson, Town Atty., Hempstead (Charles S. Kovit, Denise Harvey Sher and Steven D. Rhoads, of counsel), for respondent Town of Hempstead.

Before MILLER, J.P., and THOMPSON, FRIEDMANN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages, inter alia, for breach of contract, (1) the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Becker, J.), dated February 2, 1994, as granted the separate motions of the defendants Hooshang Ahdoot, James Thomas Martino and James Thomas Martino & Associates, and the Town of Hempstead for summary judgment dismissing the complaint insofar as it is asserted against them and (2) the defendant Hooshang Construction, Inc., cross-appeals from so such of the same order as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, with costs payable by the defendant Hooshang Construction, Inc., to the plaintiff and with one bill of costs payable by the plaintiff to defendants the Town of Hempstead, James Thomas Martino, James Thomas Martino & Associates, and Hooshang Ahdoot.

It is well settled that a claim against a municipality for negligently issuing a certificate of occupancy accrues when the certificate was issued and not when the injury occurs or the defective condition is discovered (see, Klein v. City of Yonkers, 53 N.Y.2d 1011, 442 N.Y.S.2d 477, 425 N.E.2d 865, affg. 73 A.D.2d 931, 423 N.Y.S.2d 685; Pleasant Ridge Townhouses Homeowners' Assn. v. T & D Constr. Corp., 181 A.D.2d 871, 581 N.Y.S.2d 857; Matter of Stelman v. Town of Poughkeepsie, 146 A.D.2d 632, 536 N.Y.S.2d 537). It is undisputed that the complaint in this case was filed more than one year and 90 days from the date that the defendant Town of Hempstead (hereinafter the Town) issued a certificate of occupancy for the plaintiff's house, which is the subject of this appeal. Therefore, the complaint, insofar as it is asserted against the Town, is barred by the one-year-and-90-day Statute of Limitations (see, General Municipal Law § 50-i[1][c].

It is undisputed that the architectural plans created by the defendant James Thomas Martino (hereinafter Martino) of the defendant James Thomas Martino & Associates (hereinafter Martino Associates) were used by the builder-vendor, the defendant Hooshang Construction, Inc. (hereinafter Hooshang Construction), when constructing the plaintiff's house. It is also undisputed that Hooshang Construction deviated from Martino's plans, and the plaintiff alleges that the deviation was the proximate cause of the house's defects. Therefore, Martino and Martino Associates are not liable to the plaintiff for negligently designing the house.

The defendant Hooshang Ahdoot (hereinafter Ahdoot), an officer of Hooshang Construction, allegedly made fraudulent misrepresentations to the plaintiff which induced the plaintiff to purchase the house. A review of the record reveals, however, that the statements allegedly made by Ahdoot are not actionable under a fraud theory of liability because they are based on the same allegations that give rise to a breach of contract cause of action (see, Brenner v. DeBruin, 186 A.D.2d 701, 703, 589 N.Y.S.2d 56; McKernin v. Fanny Farmer Candy Shops, 176 A.D.2d 233, 234, 574 N.Y.S.2d 58; Zaug v....