Sosnow v. Paul

• Decision Date: 19 February 1974
• Citation: 43 A.D.2d 978,352 N.Y.S.2d 502
• Parties: Morris SOSNOW et al., Respondents, v. Samuel PAUL et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 502

352 N.Y.S.2d 502

43 A.D.2d 978

Morris SOSNOW et al., Respondents, v. Samuel PAUL et al., Appellants.

Supreme Court, Appellate Division, Second Department.

Feb. 19, 1974.

Before SHAPIRO, Acting P.J., and CHRIST, BRENNAN, BENJAMIN and MUNDER, JJ.

MEMORANDUM BY THE COURT.

In an action against two architects to recover damages for alleged faulty performance of their services, defendants appeal from an order of the Supreme Court, Nassau County, dated August 18, 1972, which denied their motion to dismiss the complaint on the ground of the Statute of Limitations.

Order reversed, on the law, with $20 costs and disbursements, motion granted and complaint dismissed.

Defendants, licensed architects, were retained by plaintiffs on or about June 19, 1961 to prepare all architectural, mechanical and structural engineering drawings and specifications for the construction of a three-apartment-building development, to be known as 'Birchwood Towers', in Forest Hills, Queens, New York City. The buildings were subsequently constructed in accordance with defendants' plans and specifications and were completed on or about April 26, 1965.

Alleging two causes of action, the first for negligent performance of services, or professional malpractice, and the second for breach of contract, plaintiffs charged that some time subsequent to construction they became aware of the fact that the three buildings were beginning to show severe masonry cracking at their exteriors, bulging of large masonry areas at their lintels and cracking of roof parapets. It was claimed that this was directly due to, among other things, defendants' failure to provide for expansion and control joints throughout the buildings to properly control expansion, contraction and creep.

It is undisputed that the summons commencing the suit was served on defendants on or about September 30, 1971. Both parties agree that a three-year Statute of Limitations applies to both causes of action, since defendants' alleged malpractice is truly the basis for the cause of action sounding in breach of contract (see Webber v. Herkimer & Mohawk St. R.R Co., 109 N.Y. 311, 16 N.E. 358). The parties disagree, however, as to when the causes of action actually accrued. Defendants contend that they accrued no later than the time of completion date of the buildings, April 26, 1965. Plaintiffs contend that the right to sue accrued upon the discovery of the damage to the buildings, which, without statement of specific date, they contend, in their opposing affidavit only, occurred some time within the three-year period preceding the service of the summons.

Special Term, in apparent agreement with plaintiffs, held, in effect, that the discovery rule urged by plaintiffs might be applicable in this case and denied defendants' motion, predicating its decision upon the decisions in Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871, and Siegel v. Kranis, 29 A.D.2d 477, 288 N.Y.S.2d 831. We think that Special Term erred both in its holding and in its reliance upon the cited cases.

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). This rule was relied on by defendants in their brief on this appeal was amply substantiated by them with viable case law. Plaintiffs have failed to cite a single applicable case abrogating that rule. We have found none. The cases cited by Special Term also supply no authority for its ruling.

The Flanagan case...