Opinion
03-28-2017
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Plaintiff–Appellant, v. ENNEAD ARCHITECTS LLP, Defendant–Respondent.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for appellant. Zetlin & De Chiara LLP, New York (Bill P. Chimos of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for appellant.
Zetlin & De Chiara LLP, New York (Bill P. Chimos of counsel), for respondent.
RICHTER, J.P., MAZZARELLI, KAHN, GESMER, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered January 15, 2016, which granted defendant's motion to dismiss pursuant to CPLR 3211(a)(5) on statute of limitations grounds, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.
On this CPLR 3211(a)(5) motion, defendant did not meet its initial burden of "establishing, prima facie, that the time in which to sue has expired" (Benn v. Benn, 82 A.D.3d 548, 548, 918 N.Y.S.2d 465 [1st Dept.2011] ). A cause of action to recover damages against an architect for professional malpractice is governed by a three-year statute of limitations, which accrues upon "termination of the professional relationship"—that is, when it "completes its performance of significant (i.e., non-ministerial) duties under the parties' contract" (Sendar Dev. Co., LLC v. CMA Design Studio P.C., 68 A.D.3d 500, 503, 890 N.Y.S.2d 534 [1st Dept.2009] ). As this action was brought on February 27, 2015, plaintiff's claims were timely so long as they accrued on or after February 27, 2012.
Here, defendant continued to carry out its contractual duties well after February of 2012 by, for example, assisting plaintiff with obtaining a final certificate of occupancy (see e.g. Serradilla v. Lords Corp., 50 A.D.3d 345, 346, 855 N.Y.S.2d 99 [1st Dept.2008] ). Defendant was contractually obligated to review "as built" drawings under the relevant agreement, which it continued to do after February of 2012 (Parsons, Brickerhoff, Quade & Douglas, Inc. v. EnergyPro Constr. Partners, 271 A.D.2d 233, 234, 707 N.Y.S.2d 30 [1st Dept.2000] ). The provisions of the parties' contract that the IAS court relied upon in determining that the parties' relationship ended in 2009 when the work was "substantially completed" were at best ambiguous, and certainly not sufficient to satisfy defendant's threshold burden of establishing untimeliness (Benn, 82 A.D.3d at 548, 918 N.Y.S.2d 465 ; Rosalie Estates v. Colonia Ins. Co., 227 A.D.2d 335, 336, 643 N.Y.S.2d 59 [1st Dept.1996] ).
As an alternative holding, we conclude that the continuous representation doctrine toll applies, at least with respect to defendant's attempts after February 2012 to remedy the faulty design of the custom etched-glass windows (City of New York v. Castro–Blanco, Piscioneri & Assoc., 222 A.D.2d 226, 227–228, 634 N.Y.S.2d 489 [1st Dept.1995] ). Defendant does not dispute that it performed these services within three years of the action being commenced.