Steiner v. Wenning

• Decision Date: 12 July 1976
• Citation: 386 N.Y.S.2d 429,53 A.D.2d 437
• Parties: Helen J. STEINER, Appellant, v. Harry WENNING, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 429

386 N.Y.S.2d 429

53 A.D.2d 437

Helen J. STEINER, Appellant, v. Harry WENNING, Respondent.

Supreme Court, Appellate Division, Second Department.

July 12, 1976.

Helen J. Steiner, pro se.

Hart & Hume, New York City (Joseph A. Bergadano, New York City, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, LATHAM, SHAPIRO and HAWKINS, JJ.

HAWKINS, Justice.

This appeal is from a judgment in favor of the defendant upon the trial court's denial of plaintiff's motion, upon oral argument, after a jury had been selected, to amend the complaint so as to plead a cause of action for breach of contract and to strike the defendant's affirmative defense that the action is time-barred by the three-year Statute of Limitations (CPLR 214) and upon its grant of the defendant's cross motion to dismiss the action as time-barred.

On December 9, 1963 the parties entered into a written agreement whereby the plaintiff engaged the defendant, an architect, to prepare plans for the design and construction of a one-family house. The defendant rendered such professional services during the following two years. The house was completed in 1965. The certificate of occupancy was issued on May 27, 1965. Plaintiff began occupancy on May 3, 1965. The last items of work, the blacktopping of the driveway and the installation of a floor slab in the garage, were completed in December of that year. This action was commenced in December, 1969.

Inter alia, the contract, the standard American Institute of Architects form, provided that (1) the defendant would (a) prepare studies, drawings and specifications, (b) confer with persons desiring to enter into contracts for work on the project, (c) issue certificates for payments, (d) 'supervise the work being done * * * or (the) furnishing (of) materials' and (e) guard against noncompliance by any contractor, 'but the architect does not thereby guarantee the performance by any contractor or other person of his, its or their contracts' and (2) the defendant's 'supervision is to be distinguished from the continuous personal superintendence which can be obtained by the employment of a clerk-of-the-works. However, the architect specifically agrees and covenants that he will be at the premises at least three times a week to carry out his duties of supervision.' The stated fee was 10% Of the cost of the project. It was to be paid at listed amounts and percentages at various stages of construction, with the last part to be paid at the time of the issuance of the certificate of occupancy.

The plaintiff, a lay person, prepared her own complaint and did not engage counsel until some four months before the trial. She is acting on her own behalf on the instant appeal. In the colloquy upon the motion at Trial Term, the Justice then presiding commended the plaintiff's efforts in drawing the pleadings, but added that if he were requested to reform the complaint, it would, nevertheless, emerge 'substantively' in 'malpractice'. The plaintiff's then attorney, in support of the motion, urged that 'the complaint has verbiage sounding in tort and in contract.' He further argued that the plaintiff 'copied the verbiage from form books, which she did not know the value of, and what to do' and that the architect had guaranteed a result as in the instances of a doctor effecting 'a cure' or a lawyer guaranteeing that he 'will win a case for the party.' The specific guaranty alleged is that the house would be completed no later than August 1, 1964.

This court has also considered whether the three-or six year Statute of Limitations is applicable where an owner, aggrieved by the architect's services, seeks redress (see Sears, Roebuck & Co. v. Enco Associates, App.Div., 385 N.Y.S.2d 613 (decided herewith)). Until the advent of Matter of Paver & Wildfoerster (Catholic High School Assn.), 38 N.Y.2d 669, 382 N.Y.S.2d 22, 345 N.E.2d 565, in February, 1976, the cases held, with some measure of uniformity, that, absent a 'special agreement' as sometimes is found in a physician-patient relationship involving a guaranteed cure, or in an owner-architect contract containing a guarantee of continuous and more-than-routine supervisory services, the three-year period applied. No matter the precise terminology of the plaint, or the endeavors to anchor the action to contract rather than tort, the 'reality' and the 'essence' are in tort and not in contract (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).

Paver, decided during the pendency of this appeal, is of little solace to the plaintiff. The crux of that holding is that when the contract provides for arbitration, and that remedy has been invoked, arbitration lies despite the action being time-barred at law by the three-year Statute of Limitations or by CPLR 7502 (subd. (b)), which bars arbitration if the claim is time-barred.

We have considered the impact of Paver in deciding Sears, Roebuck & Co. v. Enco Associates. Here, as in Sears, neither party has invoked arbitration; thus there is no departure from or variant of the rule set forth in Sosnow v. Paul, 36 N.Y.2d 780, 369 N.Y.S.2d 693, 330 N.E.2d 643. Sosnow held that the date of accrual of an action in malpractice runs from the date the architect last rendered services. The 'reality' and the 'essence' approach in determining whether the three-year tort or six-year contract Statute of Limitations applies remains unimpaired by Paver. The existence of a contract calling for professional services does not, Ipso facto, make applicable the contract Statute of Limitations. As long ago as 1888, in Webber v. Herkimer & Mohawk St. R.R. Co., 109 N.Y. 311, 16 N.E. 358, the Court of Appeals held that, although a passenger who had sustained injuries had entered into a contract at the time of purchase of the ticket of passage, and that there necessarily had been a breach in failing safely to transport, the essence of the action was the failure to use due care. Thus, there was negligence or malpractice, and not breach of contract.

In Alyssa Originals v. Finkelstein, 22 A.D.2d 701, 254 N.Y.S.2d 21, affd. 24 N.Y.2d 976, 302 N.Y.S.2d 599, 250 N.E.2d 82, we held that a tenant seeking redress from his landlord for damages caused by a leaking roof was proceeding in tort and not for breach of the lease. Accountants who had failed to detect a bookkeeper's false entries were held liable for malpractice and not for breach of contract (see Carr v. Lipshie, supra). That negligence is the critical factor, rather than breach of contract, in an actual or implied contractual situation is evident from Blessington v. McCrory Stores Corp., 305 N.Y. 140, 111 N.E.2d 421, where a products liability situation permitted the six-year statute since there was no need to prove negligence.

A 'bifurcated' approach, as suggested by the dissent, whereby functions of supervision are separated from those of drawing plans, etc., is similarly unavailing. It may well be that, under the Education Law, one who supervises construction work need not be a licensed architect or engineer. For responsibility to attach to an architect performing such supervisory services, there would be required specific contractual provisions encompassing such services. Here the contract expressly excepts such continuing services.

The Trial Term correctly denied the belated application to amend the complaint. No attorney, no matter the semantic gymastics, could under the facts transform the pleading to contract, for:

'the nature of the charge of malpractice is not changed by failing to sufficiently state it in necessary detail, or by putting it in language suitable to the statement of a cause of action on contract, omitting the usual allegations as to the absence of skill and negligence' (Horowitz v. Bogart, 218 App.Div. 158, 160, 217 N.Y.S. 881, 882).

Had the complaint been amended as proposed, and all allegations of lack of professional competence or negligence deleted, it would still not have availed the appellant (see Hurlburt v. Gillett, 96 Misc. 585, 161 N.Y.S. 994, affd. 176 App.Div. 893, 162 N.Y.S. 1124). It is not the phraseology, but rather the reality or essence of the plaint which controls. As we held in Liebler v. Our Lady of Victory Hosp., 43 A.D.2d 898, 351 N.Y.S.2d 480:

'A cause of action in contract, as distinguished from one is malpractice, must be based upon the breach of a particular or special agreement (Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330; Colvin v. Smith, 276 App.Div. 9, 92 N.Y.S.2d 794; Keating v. Perkins, 250 App.Div. 9, 293 N.Y.S. 197). An allegation of failure to provide medical care or failure to provide medical service in a proper manner is insufficient, for it is merely an attempt to plead as a contract action one which is essentially a malpractice action.'

Pre-Paver, there was little judicial doubt that the plaintiff's sole recourse was in malpractice. If so, the action is time-barred. The question remains whether Paver has opened the floodgates or has so eroded or blurred the former confines distinguishing malpractice from contract as virtually to render the six-year statute applicable no matter how tenuous the claim of any continuing obligation on the part of the professional. In our opinion, it does not. Paver holds that where the parties, by contract, provided for arbitration, and resort has been had to arbitration, the arbitrator is not then bound by the former constricting rules segregating breach from delict. Hence, the arbitrator could proceed to adjudicate the parties' claims and determine liability under either doctrine. As the court noted in Paver, 38 N.Y.2d p. 672, 382 N.Y.S.2d p. 23, 345 N.E.2d p. 566:

'in determining whether a claim for property damage is barred by the Statute of Limitations, however, the court should not be...