Sears, Roebuck & Co. v. Enco Associates

• Decision Date: 04 June 1975
• Citation: 83 Misc.2d 552,370 N.Y.S.2d 338
• Parties: SEARS, ROEBUCK & CO., Plaintiff, v. ENCO ASSOCIATES, Defendant.
• Court: New York Supreme Court

Page 338

370 N.Y.S.2d 338

83 Misc.2d 552

SEARS, ROEBUCK & CO., Plaintiff, v. ENCO ASSOCIATES, Defendant.

Supreme Court, Westchester County.

June 4, 1975.

Doran, Colleran, O'Hara, Pollio & Dunne, P.C., Garden City, for plaintiff.

Hart & Hume, New York City, for defendant.

MORRIE SLIFKIN, Justice.

In an action against architects to recover damages for alleged negligence, breach of contract, and breach of implied warranty, defendant moves to dismiss the complaint on the grounds that the action is barred by the statute of limitations (CPLR 3211(a)(5)) and that the pleading fails to state a cause of action (CPLR 3211(a)(7)).

On March 24, 1975, this court denied the motion with leave to renew upon proper papers. Thereafter, the matter was renewed on May 16, 1975 and referred to this court.

An examination of the complaint reveals that plaintiff is a domestic corporation and defendant is a foreign corporation, doing business in the state. The first cause of action alleges that on May 15, 1967, the parties contracted for the design of a system of ramps at plaintiff's facility in White Plains. Said ramps were to provide egress and ingress for a parking deck. Defendant allegedly held itself out to be architects and engineers qualified to design and supervise the construction. Defendant prepared the plans, specifications and designs and commenced the supervision of the construction. On December 31, 1968, the defendant advised plaintiff that the ramps were substantially completed. After the ramps were turned over to plaintiff for use cracks appeared, allegedly as the result of improper design of snow melting pipes contained in the ramps, and of defendant's failure to include expansion joints.

Plaintiff alleges that it relied exclusively on the expertise of defendant in designing the ramps and snow melting pipes. The complaint alleges as a first cause of action that the cracking of the ramps is the result of the negligence of defendant in preparing the design and engineering plans of the ramps.

The second cause of action alleges that defendant impliedly warranted that the designs, engineering plans and specifications to be rendered would be reasonably fit for the purposes intended and the ramps would be structurally proper. It is alleged that defendant breached said warranty.

The third cause of action alleges a breach of contract by defendant in that it improperly designed the ramps.

The complaint was served on June 1st, 1972.

Defendant's answer denies the material allegations of the complaint and sets forth two affirmative defenses. The first is that the claim was interposed more than three years after the accrual of the cause of action and therefore, its prosecution is barred by the Statute of Limitations. The second is that plaintiff was contributorily negligent and that defendant was not negligent.

Against the foregoing background, the instant motion is made. Defendant moves to dismiss the negligence cause of action on the ground that the three year Statute of Limitations has run and the action is therefore barred and to dismiss the breach of warranty and breach of contract causes of action on the ground that they fail to state a cause of action.

Before examining the legal contentions of the parties, certain facts must be pointed out.

The agreement which forms the basis of this lawsuit was entered into on May 15, 1967. It is a standard printed form of agreement between the owner and architect prepared by the American Institute of Architects. It provides that 'unless otherwise specified, this agreement shall be governed by the law of the principal place of business of the Architect'. Defendant is a Michigan corporation with its principal place of business in that state.

Following the execution of the contract and the approval of the plans by the Common Council of the City of White Plains, construction was started in 1967 and substantially completed in 1968. The work was certified by defendant as completed in April 1968. The final inspection of the ramps by the Department of Buildings of the City of White Plains occurred in June 1968. In July 1968, defendant was informed of problems. However, after various reports and correspondence inquiry by the Commissioner of Buildings of the City of White Plains closed in August 1968.

In determining this motion, the court must examine the contentions raised in light of both the laws of the State of New York, and of the State of Michigan and determine what would be the result under New York law, as well as under Michigan law. The court therefore first turns to an examination of the merits of this motion under the law of the State of New York.

The complaint sets forth what are alleged to be three causes of action against defendants, to wit, (1) that the defendant was negligent in preparing the design and engineering plans for the ramp, ergo that it was guilty of professional malpractice; (2) that defendant impliedly warranted that the design, engineering, and plans and specifications would be reasonably suited for the purposes intended and that the ramps would be structurally proper; and (3) that defendant breached its contract in that it improperly designed the ramps.

It may not be gainsaid that an action for professional malpractice is governed by the three year statute of limitations set forth in CPLR § 214 (see, 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; Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311, 16 N.E. 358). Further, the courts of this state have consistently held that the mere fact that a plaintiff elects to characterize an action against a professional as one for breach of contract or for something other than negligence or malpractice, does not necessarily make it fall into that specific designated category. The issue to be determined is whether the claim, regardless of what plaintiff may choose to call it, is in essence an action for professional malpractice. If it is, then the malpractice statute of limitations applies. (see Carr v. Lipshie, 8 A.D.2d 330, 187 N.Y.S.2d 564, affd. 9 N.Y.2d 983, 218 N.Y.S.2d 62, 176 N.E.2d 512; Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902, 904; Glens Falls Ins. Co. v. Reynolds, 3 A.D.2d 686, 159 N.Y.S.2d 95). An examination of the complaint and the bill of particulars indicates that the wrong complained of is tortious in nature, essentially sounding in malpractice. Accordingly, the court concludes that as to the first cause of action, if New York law applies, the applicable Statute of Limitations is three years.

Assuming that the three year statute of limitations of CPLR § 214 is to be applied, the question then arises as to when the cause of action accrued since CPLR 203(a) instructs us that the time within an action must be commenced shall be computed from the date the cause of action accrued to the time the action is commenced. In determining when the cause of action accrued under New York law, the court has the benefit of a recent determination of its Appellate Division which has been affirmed by the Court of Appeals. Thus, in 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, an action against architects for negligence or professional malpractice, defendants urged that the three year statute of limitations accrued no later than the time of completion of the buildings, while plaintiffs contended that the cause of action accrued upon the discovery of the damage of the buildings. The Appellate Division, Second Department, specifically held 'the rule in cases where the gravamen of the suit is professional malpractice is now and has always been that the cause of action accrues upon the performance of the work by the professional (Gilbert Props. v. Millstein, 40 A.D.2d 100, 102, 338 N.Y.S.2d 370, 371; Seger v. Cornwell, 44 Misc.2d 994, 255 N.Y.S.2d 744)'. The court specifically rejected the claim based on Flanagan v. Mt. Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871, that the cause of action did not accrue until discovery of the defect. The court made it clear that the rule of the Flanagan holding was limited solely to foreign object medical malpractice cases (see also, Schiffman v. Hospital for Joint Diseases, 36 A.D.2d 31, 319 N.Y.S.2d 674). The court also noted that even were the continuous treatment theory of Borgia v. City of N.Y., 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777 applied, at most, it would merely permit the plaintiff to claim that the cause of action did not accrue until the completion of construction and the termination of the relationship. (see Siegel v. Kranis, 29 A.D.2d 477, 288 N.Y.S.2d 831).

In the affirmance of Sosnow in the Court of Appeals, the memorandum opinion stated that the cause of action accrued upon the completion of the buildings. In the case at bar, whether the statute of limitations is held to begin to run on the performance of the work by the professional--sometime in 1967--or upon the completion of work in April 1968 when the certificate of completion by defendant was issued, or even upon the date of the final inspection by the Department of Buildings in June 1968, it is clear that the date on which the cause of action accrued was more than three years before this action was commenced on June 28, 1972. Thus, it must be concluded that the cause of action for professional malpractice is barred by the New York Statute of Limitations.

The court notes that defendant relies upon County of Broome v. Vincent J. Smith, Inc., 78 Misc.2d 889, 358 N.Y.S.2d 998, decided August 14, 1974, in which the court applied the continuous treatment exception to an action against an architect for professional malpractice. However, in view of the determination in Sosnow v. Paul, that the cause of action accrued no later than the completion of construction, and also in light of the fact that on all the papers submitted herein, no...