Seger v. Cornwell
| Decision Date | 21 December 1964 |
| Citation | 44 Misc.2d 994,255 N.Y.S.2d 744 |
| Parties | Joseph SEGER, Plaintiff, v. Altamont J. CORNWELL, Defendant. |
| Court | New York Supreme Court |
Tepedino & Fisher, Albany, for plaintiff (Michael Tepedino, Albany, of counsel).
Tabner & Carlson, Albany, for defendant (John W. Tabner, Albany, of counsel).
This is a motion on behalf of the defendant for an order pursuant to CPLR 3211(a)(5) dismissing the cause of action alleged herein on the ground that the action was not commenced within the time specified in CPLR Article 2.
It appears uncontradicted that during April of 1958 the plaintiff engaged the professional services of the defendant, who was duly licensed, to survey a certain piece of real estate owned by him and to lay out the property lines for a proposed building to be erected thereon.
Subsequently certain encroachments were discovered and the plaintiff incurred expenses in their correction which expenses he now seeks to recover in this action.
Since the summons in the instant action was not served until July 22, 1964 the question critical of the disposition of this motion is whether or not the plaintiff's cause of action is barred as a matter of law by the statute of limitations.
Counsel for both parties agree that the statute of limitations of three years provided by section 214, subdivision 6, CPLR is the term to be applied to this claim of alleged malpractice but disagree on the question of the time when the computation of such period begins.
The defendant argues that the three year statute of limitations begins to run from April, 1958, the time the cause of action accrued, while the plaintiff contends that subdivision (f) of section 203 CPLR should be applied and if it is the statute is no bar.
While the plaintiff's argument has more than a passing emotional appeal it cannot be invoked until the legislature so decides.
Curiously, it seems that it was generally understood that malpractice referred only to actions 'to recover damages for personal injuries resulting from the misconduct of physicians, surgeons, and others practicing a profession similar to those enumerated.' (Italics supplied.) (Federal International Banking Co. v. Touche, 248 N.Y. 517, 518, 162 N.E. 507, 508.)
As a matter of fact, consistent with such holding, it has been held that the old malpractice statute of limitations did not apply to an action against an accountant where the injury claimed was an injury to property rather than personal injury. (American Exchange Pacific Bank v. Touche, 131 Misc. 236, 227 N.Y.S. 218.)
The same rule was applied as well in the case of an attorney. (Registered Country Homebuilders, Inc. v. Stebbins, 14 Misc.2d 821, 179 N.Y.S.2d 602; Glens Falls Insurance Company v. Reynolds, 3 A.D.2d 686 (28), 159 N.Y.S.2d 95.)
It would appear, however, that the legislature now intends that all malpractice actions, whether they involve property damage or personal injury, are to be covered by the three year statute of limitations provided for in subdivision 6 of section 214 of the CPLR.
Such conclusion flows from the fact that there would be no need for a specific reference to 'malpractice' since under the CPLR statute, actions for personal injury have a three year statute.
However, the Revisers continued the use of the term 'malpractice' to clarify their intention that 'malpractice involving property damage--e. g., against an accountant--may be based on a contract...
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