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QUESTIONS OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE TOLLED THE STATUTE OF LIMITATIONS IN THIS ARCHITECTURAL MALPRACTICE/BREACH OF CONTRACT ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact about whether the continuous representation doctrine tolled the statute of limitations in this architectural malpractice/breach of contract action. Defendant’s decedent was hired by plaintiff to construct a four-story condominium. Although the work was completed in 2008 there were problems getting approval by the city and new architectural services contracts were entered in 2015 and 2018. The court noted that, where a motion to dismiss pursuant to CPLR 3211 is made on statute-of-limitations grounds, a plaintiff may remedy any defects in the pleadings in an affidavit:

“[A]n action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” is subject to a three-year statute of limitations (CPLR 214[6] … ). Such an action, founded upon “defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship” … . However, “a professional malpractice cause of action asserted against an architect or engineer may be tolled under the continuous representation’ doctrine if the plaintiff shows its reliance upon a continued course of services related to the original professional services provided” … . * * *

Even if the defendant had met her prima facie burden, the plaintiff raised a question of fact as to whether the continuous representation toll applied. Specifically, the plaintiff averred in an affidavit in opposition to the motion that [defendant’s decedent] continued to work on the project from 2008 through the time that the parties entered into the 2015 agreement, including by continuing to revise the plans so as to subdivide the property, regularly meeting with the plaintiff, renewing building permits with the plaintiff, meeting with a “commissioner” at the DOB [NYC Department of Buildings] to discuss revised plans, and filing an application concerning the project with the DOB in 2014. Anderson v Pinn, 2020 NY Slip Op 03636, Second Dept 7-1-20

 

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THE COMPLAINT ADEQUATELY ALLEGED THE TOLLING OF THE STATUTE OF LIMITATIONS PURSUANT TO THE CONTINUOUS REPRESENTATION DOCTRINE AND THE EXISTENCE OF THE FUNCTIONAL EQUIVALENT OF PRIVITY BETWEEN PLAINTIFF AND THE DEFENDANT ARCHITECT; SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint alleging architectural malpractice should not have been dismissed pursuant to CPLR 3211. Plaintiff leased the first floor of a building to operate a pizza restaurant. Plaintiff hired a contractor which in turn hired an architect for the heating, ventilation and air conditioning (HVAC) design. The gas line hookup was completed in 2014. Subsequently, in 2016, National Grid shut off the gas, alleging plaintiff was stealing gas. In 2017 the defendant architect allegedly attempted to remedy the problem with the gas line. The complaint adequately pled the statute of limitations was tolled by the continuous representation doctrine and a privity-like relationship between the plaintiff and the architect:

“The law recognizes that the supposed completion of the contemplated work does not preclude application of the continuous representation toll if inadequacies or other problems with the contemplated work timely manifest themselves after that date and the parties continue the professional relationship to remedy those problems” … . In support of its motion, the architect submitted documentary evidence which included a final invoice issued by it dated August 14, 2014, and a letter of completion issued by the New York City Department of Buildings to the architect stating that its work was completed on December 20, 2014. In opposition, the plaintiffs’ submissions, which included evidence of continuing communications between [plaintiff] and the architect, and evidence of the architect’s efforts to remedy the alleged error uncovered by National Grid regarding the gas line connection for the premises, raised a question of fact as to the application of the continuous representation doctrine and supported the denial of those branches of the architect’s motion which were pursuant to CPLR 3211(a)(1) and (5) to dismiss the amended complaint insofar as asserted against it … . Contrary to the architect’s contention, the fact that two years had elapsed between the completion of its services and its subsequent efforts to remedy the problem does not render the continuous representation doctrine inapplicable as a matter of law … .

We also reject the architect’s contention, as an alternative ground for affirmance, that dismissal of the amended complaint insofar as asserted against it was warranted pursuant to CPLR 3211(a)(1) and (7), on the ground that it was not in privity with the plaintiffs. The evidence submitted by the architect, which included a copy of the contract entered into between it and the contractor, failed to utterly refute the factual allegations supporting the plaintiffs’ contention that a relationship existed between them and the architect that was the “functional equivalent of privity” … . Creative Rest., Inc. v Dyckman Plumbing & Heating, Inc., 2020 NY Slip Op 03499, Second Dept 6-24-20

 

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ARCHITECT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED, THE FACT THAT ANOTHER PARTY PLACED THE ANGLE IRON WHICH INJURED PLAINTIFF IN AN EFFORT TO FIX AN ALLEGED DEFECT IN THE DESIGN OF THE SUBJECT BOILER SYSTEM DID NOT CONSTITUTE A SUPERSEDING CAUSE OF PLAINTIFF’S INJURY AS A MATTER OF LAW (FIRST DEPT).

The First Department determined defendant architect’s (Cannon’s) motion for summary judgment in this personal injury case was properly denied. Plaintiff was injured when an angle iron used to support part of a boiler system struck him on the head. Cannon argued it did not have any responsibility for the use of the angle iron as a support, which was placed there by a third party. However Cannon approved the boiler system and therefore may have been responsible for the defect which resulted in the need for the angle-iron support. Therefore the placement of the angle iron may not have been a superseding cause of the injury:

… [A]ccording to Cannon, even if it was negligent in its review of the component list or in its inspections of the ongoing work, any such negligence was not a proximate cause of the accident, because the installation of angle irons, which it never approved, and the failure of DASNY [building owner] and Martin [HVAC contractor} to heed its remediation recommendation for eight months before the accident occurred were intervening superseding causes.

“When a question of proximate cause involves an intervening act, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence'” … . “The mere fact that other persons share some responsibility for plaintiff’s harm does not absolve defendant from liability because there may be more than one proximate cause of an injury'” … . Here, a jury could reasonably conclude that the effort to reinforce the cleanout port covers with angle irons was a normal and foreseeable consequence of the alleged inadequacy of the covers, which Cannon either approved or failed to detect, and which Cannon’s principal acknowledged were not the proper covers. Thus, under the circumstances presented in this case, there remain triable issues of fact as to whether, inter alia, the use of the angle iron bracing, as well as DASNY and Martin’s failure to replace the covers, despite notice from Cannon, constituted superseding causes of plaintiff’s injuries  … . Demetro v Dormitory Auth. of the State of N.Y., 2019 NY Slip Op 01642, First Dept 3-7-19

 

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CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over two partial dissenting opinions, determined the city was not a third-party beneficiary of a contract between the Dormitory Authority of the State of New York (DASNY) and defendant architects (Perkins) and the negligence cause of action (professional malpractice) by DASNY against Perkins was duplicative of the the breach of contract cause of action. Perkins had contracted with DASNY to construct a building. During excavation a neighboring building, sidewalks, sewers, etc. settled. The building gradually settled about eight inches. The majority explained when a tort action, in addition to a breach of contract action, is viable in the context of architectural malpractice:

With respect to construction contracts, we have generally required express contractual language stating that the contracting parties intended to benefit a third party by permitting that third party “to enforce [a promisee’s] contract with another” … . In the absence of express language, “[s]uch third parties are generally considered mere incidental beneficiaries” … . This rule reflects the particular nature of construction contracts and the fact that — as is the case here — there are often several contracts between various entities, with performance ultimately benefitting all of the entities involved. * * *

… [T]here are circumstances where a professional architect may be subject to a tort claim for failure to exercise due care in the performance of contractual obligations. In seeking to “disentangl[e] tort and contract claims,” we focused in Sommer both on potential catastrophic consequences of a failure to exercise due care and on the nature of the injury, the manner in which it occurred, and the resulting harm (79 NY2d at 552). We distinguished between the situation where the harm was an “abrupt, cataclysmic occurrence” not contemplated by the contracting parties and one where the plaintiff was essentially seeking enforcement of contract rights (79 NY2d at 552). Here, the … building settled during the course of several months, damaging adjacent structures. However, even if any “abrupt” or “catastrophic” consequences either could have or did result from Perkins’ alleged negligence, the fact remains that the only damages alleged appear to have been within the contemplation of the parties under the contract — and … are identical for both claims. Put another way, there was no injury alleged here that a separate negligence claim would include that is not already encompassed in DASNY’s contract claim. Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 2018 NY Slip Op 01115, CtApp 2-15-18

CONTRACT LAW (CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))/THIRD PARTY BENEFICIARY (CONSTRUCTION CONTRACT, CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))/CONSTRUCTION CONTRACTS (THIRD PARTY BENEFICIARY, CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))/NEGLIGENCE (ARCHITECTURAL MALPRACTICE, CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))/ARCHITECTURAL MALPRACTICE (CITY WAS NOT A THIRD PARTY BENEFICIARY OF A CONSTRUCTION CONTRACT BETWEEN THE DORMITORY AUTHORITY OF NYS AND DEFENDANT ARCHITECTS, MALPRACTICE ACTION AGAINST THE ARCHITECTS WAS DUPLICATIVE OF THE BREACH OF CONTRACT ACTION (CT APP))

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NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant architect’s motion to set aside the verdict in this professional malpractice case should have been granted. Expert testimony was required and was not presented:

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… [T]he plaintiff in this case alleged that the defendants committed professional malpractice by submitting defective plans to the New York City Department of Buildings (hereinafter the DOB), and by failing to diligently pursue the approval process and timely deal with objections raised by the DOB. Such questions are not within the competence of untutored laypersons to evaluate, as “common experience and observation offer little guidance” … .

The only expert proffered by the plaintiff conceded that he “didn’t see” the defendants’ plans, and when asked, for instance, to opine on whether the defendants’ plans “would have caused a problem” regarding the roof’s ability to bear the weight of certain HVAC equipment, he demurred, answering, “No, I only work for myself.” Moreover, the expert offered no opinion regarding the defendants’ alleged delay in getting their plans approved by the DOB. Given the absence of any expert testimony that the defendants departed from accepted architectural standards of practice … , the jury lacked any rational basis for its finding that the defendants committed professional malpractice … . Michael v He Gin Lee Architect Planner, PLLC, 2017 NY Slip Op 06177, Second Dept 8-16-17

 

NEGLIGENCE (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (ARCHITECT MALPRACTICE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/PROFESSIONAL MALPRACTICE (ARCHITECTS, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/EXPERT OPINION  (ARCHITECT MALPRACTICE, EXPERT EVIDENCE, NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ARCHITECTS (PROFESSIONAL MALPRACTICE,  NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED.

The Second Department, in a lawsuit stemming from the flooding of plaintiffs’ land, explained the differences between contribution and indemnification and noted that corporate officers may be personally liable for torts committed in their performance of corporate duties:

The plaintiffs commenced this action against the Village of East Hills after they experienced flooding on their property from rainwater. The plaintiffs asserted causes of action sounding in tort, alleging that the flooding resulted from the development of land near their property, which was authorized by the Village. The Village commenced a third-party action seeking indemnification and contribution against A to Z Transit Contracting Corp., the project manager that constructed the plaintiffs’ home, as well as its principal, David Ferdinand, architect Carl Majowka, who prepared plans for the construction of the plaintiffs’ home, and Scott Anderson, the principal of Scott Anderson Design, Inc., which performed landscaping work for the plaintiffs’ home. * * *

“[C]ontribution arises automatically when certain factors are present and [does] not requir[e] any kind of agreement between or among the wrongdoers'” … . ” Indemnity, on the other hand, arises out of a contract which may be express or may be implied in law “to prevent a result which is regarded as unjust or unsatisfactory”‘” … . “Further, “[w]here one is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent.” . . . Conversely, where a party is held liable at least partially because of its own negligence, contribution against other culpable tort-feasors is the only available remedy'”… . “Whether indemnity or contribution applies depends not upon the parties’ designation but upon a careful analysis of the theory of recovery against each tort-feasor'”       * * *

Although “[c]orporate officers may not be held personally liable on contracts of their corporations, provided they did not purport to bind themselves individually under such contracts” … , “corporate officers may be held personally liable for torts committed in the performance of their corporate duties'” … . Eisman v Village of E. Hills. 2017 NY Slip Op 02775, 2nd Dept 4-12-17

NEGLIGENCE (DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED)/CONTRACT LAW (DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED)/CORPORATION LAW  (DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED)/MUNICIPAL LAW (DIFFERENCES BETWEEN CONTRIBUTION AND INDEMNIFICATION EXPLAINED, PERSONAL TORT LIABILITY OF CORPORATE OFFICERS NOTED)

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ARCHITECT MAY BE LIABLE FOR BOTH BREACH OF CONTRACT AND NEGLIGENCE.

The First Department, over a dissent, determined an architect, Perkins, could be sued for both breach of contract and negligence in a lawsuit stemming from the settling of a building and other structures in the vicinity of new construction. The court also concluded the plaintiff city, although not mentioned in the contract with the architect, had raised a question of fact whether the city was an intended third-party beneficiary of the contract. With respect to when a professional-party to a contract can be liable in tort, the court wrote:

Perkins, as architect, may be subject to tort liability based on a failure to exercise due care in the performance of its duties. In making this determination, the court is to look at the nature of the injury and whether the plaintiff is merely seeking the benefit of its agreement. Where the plaintiff is merely seeking the benefit of its agreement, it is limited to a contract claim … .

Where, however, “the particular project . . . is so affected with the public interest that the failure to perform competently can have catastrophic consequences,” a professional may be subject to tort liability as well … . Indeed, “[t]his is one of the most significant elements in determining whether the nature of the type of services rendered gives rise to a duty of reasonable care independent of the contract itself” (… citing Sommer v Federal Signal Corp., 79 NY2d 540, 553 [1992]). As the Court explained in Sommer, “[I]t is policy, not the parties' contract, that gives rise to a duty of care” … . The “nature of the injury, the manner in which the injury occurred and the resulting harm” are also considered … .

Here, there is a factual question whether Perkins assumed an independent legal duty as an architect to perform its work in a manner consistent with the generally accepted standard of professional care in its industry. Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 2016 NY Slip Op 01546, 1st Dept 3-3-16

NEGLIGENCE (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)/CONTRACT LAW (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)/ARCHITECTS (ARCHITECT MAY BE LIABLE IN TORT AND FOR BREACH OF CONTRACT)

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The Breach of Contract Cause of Action Which Was Based Upon Clauses Which Merely Stated the Common Law Standard of Care for Professionals Was Duplicative of the Professional Malpractice Cause of Action and Should Have Been Dismissed/Proper Measure of Damages for Negligent/Defective Building Design Is the Cost of Remediation

Plaintiff hospital alleged that the seismic retrofit of one of the hospital buildings would not operate as intended and sued the architectural firm which designed the retrofit under breach of contract and professional malpractice theories.  Plaintiff prevailed on both causes of action in a non-jury trial. The Third Department determined Supreme Court should have dismissed the breach of contract cause of action because it was duplicative of the professional malpractice cause of action. The only relevant clauses in the contract held the architectural firm to the common law standard for professionals.  Breach of those clauses, therefore, duplicated the professional malpractice cause of action. The Third Department affirmed the professional malpractice verdict and the award of damages, 1.7 million, which reflected the cost of remediation:

The contract does contain two clauses regarding defendant’s performance. They provide that defendant’s “services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the [w]ork,” and “shall be provided . . . in a manner consistent with the standards of care and skill exhibited in its profession for projects of this nature, type and degree of difficulty.” These provisions simply incorporate into the contract the common-law standard of care for a professional. “Making such ordinary obligations express terms of an agreement does not remove the issue [of a violation thereof] from the realm of negligence . . ., nor can it convert a malpractice action into a breach of contract action” … . Inasmuch as a breach of contract cause of action based on the violation of these particular contract provisions would be duplicative of a professional malpractice cause of action, Supreme Court should have dismissed plaintiff’s breach of contract cause of action. * * *

We reject defendant’s contention that plaintiff’s proposed amount of damages constitutes economic waste. The proper measure of damages due to the defective design of a building is the cost to remedy the defect, unless such amount is “grossly and unfairly out of proportion to the good to be attained” by fixing the building … . The defects here were not trivial, but were substantial as to the seismic function of the building, such that plaintiff was entitled to damages in the amount necessary to remediate the defects … . Mary Imogene Bassett Hosp. v Cannon Design, Inc., 2015 NY Slip Op 03016, 3rd Dept 4-9-15

 

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Question of Fact About Whether the Three-Year Statute of Limitations for Professional Malpractice Was Tolled by the “Continuous Representation” Doctrine

The Second Department determined plaintiff had raised a question of fact about whether the “continuous representation” doctrine tolled the statute of limitations.  The complaint alleged that the defendant engineering and architectural firms failed to provide design and construction services which complied with the disability-accessibility design requirements.  The causes of action sounded in professional malpractice and breach of contract. Here the work was completed more than three years prior to the action (three-year statute of limitations applies even to the contract cause of action).  But the firms were later used to remedy the deficiencies uncovered by the Attorney General:

“[A]n action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” is subject to a three-year statute of limitations (CPLR 214[6]…). “A cause of action to recover damages for professional malpractice . . . for defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship”… . However, a professional malpractice cause of action asserted against an architect or engineer may be tolled under the “continuous representation” doctrine if the plaintiff shows its reliance upon a continued course of services related to the original professional services provided … .

The “continuous representation” doctrine, as applied to professionals including architects and engineers, “recognizes that a person seeking professional assistance has a right to repose confidence in the professional's ability and good faith, and realistically cannot be expected to question and assess the techniques employed of the manner in which the services are rendered” … . The doctrine applies when a plaintiff shows that he or she relied upon a continuous course of services related to the particular professional duty allegedly breached… . * * *

The law recognizes that the supposed completion of the contemplated work does not preclude application of the continuous representation toll if inadequacies or other problems with the contemplated work timely manifest themselves after that date and the parties continue the professional relationship to remedy those problems … . In this regard, a motion to dismiss pursuant to CPLR 3211(a)(5) will be denied unless the facts establish that a gap between the provision of professional services on the particular matter is so great that the representation cannot be deemed continuous as a matter of law … . Regency Club at Wallkill LLC v Appel Design Group PA, 2013 NY Slip Op 08067, 2nd Dept 12-4-13

 

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