State v. Ehasz
| Decision Date | 05 February 1981 |
| Citation | 436 N.Y.S.2d 387,80 A.D.2d 671 |
| Parties | STATE of New York, Respondent, v. Frank L. EHASZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Farrell, Fritz, Caemmerer & Cleary, Williston Park (John M. Armentano, Mineola, of counsel), for appellant.
Robert Abrams, Atty. Gen. (Richard J. Dorsey, Asst. Atty. Gen., of counsel), for respondent.
Before SWEENEY, J. P., and KANE, MAIN, MIKOLL and HERLIHY, JJ.
MEMORANDUM DECISION.Appeal from an order of the Supreme Court at Special Term, entered April 8, 1980 in Albany County, which denied defendant's motion to dismiss the complaint and stayed the filing of a note of issue pending determination of a related Court of Claims action.
The State of New York and defendant entered into a contract whereby defendant, a civil engineer, was to prepare the survey and design for a portion of highway in Suffolk County, New York. The defendant completed the design contract in September, 1970, and final payment was made by the State to defendant in November, 1970. The State subsequently awarded the construction contract for that part of the highway designed by defendant to Davis Construction Company. Davis completed construction in August 1973, and received final payment from the State in July, 1975. In October, 1975, Davis filed a claim in the Court of Claims seeking damages against the State in excess of $3,000,000. Said claim was based in part on defendant's alleged misdesign of the highway.
The State has commenced the present action alleging a breach of contract in the design of the highway by defendant and a right to indemnity as to the action commenced by Davis in the Court of Claims. As found by Special Term, the applicable statute of limitations is six years and it did not commence to run until the highway construction was completed (Sears, Roebuck & Co. v. Enco Assoc., 43 N.Y.2d 389, 394, 401 N.Y.S.2d 767, 372 N.E.2d 555). The record establishes that the action was timely commenced and defendant's contention that the Sears case is inapplicable because he did not supervise the construction is rejected.
The defendant further contends that the cause of action for indemnity is premature, and that contention has some merit (Bay Ridge Air Rights v. State of New York, 57 A.D.2d 237, 239-240, 394 N.Y.S.2d 274, affd. on other grounds 44 N.Y.2d 49, 404 N.Y.S.2d 73, 375 N.E.2d 29). While the Court of Appeals in its decision in the Bay Ridge case indicated some question as to finding the...
To continue reading
Request your trial
-
Consol. Edison Co. v. Westinghouse Elec. Corp.
...limitations period. See also Schulman Investment Co., supra, 477 F.Supp. at 630-632 (action against contractor); State v. Ehasz, 80 A.D.2d 671, 436 N.Y.S.2d 387 (3rd Dep't 1981) (action against civil engineer) in both of which the Sears rule was held applicable. Moreover, in the case at han......
-
Lehman Bros. Holdings, Inc. v. Universal Am. Mortg. Co.
...ordinarily give Lehman Holdings and Aurora six years to sue. N.Y. C.P.L.R. § 213 (McKinney); see State of New York v. Ehasz, 436 N.Y.S.2d 387, 388-89, 80 A.D.2d 671, 671 (N.Y. App. Div. 1981).2 But New York's statute of limitations contains a borrowing clause. See N.Y. C.P.L.R. § 202 (McKin......
-
State v. Lundin
...construction accrual date to construction contract cases involving engineers who design the construction project (State of New York v. Ehasz, 80 A.D.2d 671, 436 N.Y.S.2d 387). Although general contractors are not professionals like architects and engineers, the contractual duty assumed by t......
-
State v. Syracuse Rigging Co. Inc.
...Departure from this rule may be warranted where the interests of justice and judicial economy so dictate (see, State of New York v. Ehasz, 80 A.D.2d 671, 672, 436 N.Y.S.2d 387; Bay Ridge Air Rights v. State of New York, supra, at 239, 394 N.Y.S.2d 464). In such an instance, the issuance of ......