Regency Club at Wallkill, LLC v. Appel Design Group, P.A.

17 Citing cases

  1. Cref 546 W. 44th St., LLC v. Hudson Meridian Constr. Grp.

    69 Misc. 3d 747 (N.Y. Sup. Ct. 2020)   Cited 1 times   1 Legal Analyses

    In particular, the mere "fact that the complaint cites the defendants' alleged failure to take into account the New York Human Rights Law" and the FHA "as particular instances of conduct that deviated from the applicable standard of care, or constituted a breach of the alleged agreements, does not render those causes of action improper claims for indemnity or contribution." ( Regency Club at Wallkill, LLC v. Appel Design Grp., P.A. , 112 A.D.3d 603, 608, 976 N.Y.S.2d 164 [2d Dept. 2013].) Hudson Meridian argues that the only damages that CREF 546 identifies are grounded in the federal action, and thus are merely requests for indemnification in different guise.

  2. Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc.

    184 A.D.3d 803 (N.Y. App. Div. 2020)   Cited 11 times

    Additionally, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (seeGuggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 683, 48 N.Y.S.3d 450 ). To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, "the defendant bears the initial burden of establishing, prima facie, that the time within which to sue has expired, whereupon the burden shifts to the plaintiff to raise a question of fact as to whether the limitations period has been tolled or should not apply" ( Bronstein v. Omega Constr. Group, Inc., 138 A.D.3d 906, 908, 30 N.Y.S.3d 653 ; seeRegency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603, 606, 976 N.Y.S.2d 164 ). "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" ( New York City Sch. Constr. Auth. v. Ennead Architects LLP, 148 A.D.3d 618, 618, 49 N.Y.S.3d 462 [internal quotation marks omitted]; see CPLR 214[6] )

  3. Bronstein v. Omega Constr. Grp.

    2014 N.Y. Slip Op. 34071 (N.Y. Sup. Ct. 2014)

    "A cause of action to recover damages for professional malpractice against an architect for defective design or construction accrues upon the actual completion of the work to be performed and the consequent termination of the professional relationship" (Frank v. Mazs Group, LLC, 30 A.D.3d 369, 369-370 [2nd 2006]). Determining the completion date with respect to an architect's obligations should be determined based on the facts and circumstances of the particular case (see Boardof Educ. of Tri-Val. Cent. School Dist. at Grahamsville v Celotex Corp., 88 A.D.2d 713, 714 [1982]. However, even after the completion of work, the statute of limitations may be tolled under the "continuous representation" doctrine where a party can show it continued to rely upon the continued services of an architect and those services relate to the original professional services (see Regency Club at Wallkill, LLC v. Appel Design Group, P.A., (112 A.D.3d 603, [2nd Dept. 2013]).

  4. Anderson v. Pinn

    185 A.D.3d 534 (N.Y. App. Div. 2020)   Cited 12 times

    "[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] ; seeMatter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 N.Y.3d 538, 541, 788 N.Y.S.2d 648, 821 N.E.2d 952 ). 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" ( Frank v. Mazs Group, LLC, 30 A.D.3d 369, 369–370, 815 N.Y.S.2d 738 ; seeState of New York v. Lundin, 60 N.Y.2d 987, 989, 471 N.Y.S.2d 261, 459 N.E.2d 486 ; Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603, 606, 976 N.Y.S.2d 164 ). 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" ( Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d at 606, 976 N.Y.S.2d 164 ).

  5. Jeffrey Berman Architect v. Kodsi

    169 A.D.3d 1019 (N.Y. App. Div. 2019)   Cited 5 times

    In opposition to the plaintiff's prima facie showing that the defendant's counterclaim alleging professional malpractice was commenced outside of the applicable one-year statute of limitations, the defendant raised a triable issue of fact as to whether the continuous representation doctrine applied to toll the running of the limitations period. "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" ( Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603, 607, 976 N.Y.S.2d 164 ). Under the circumstances, the evidence of continuing communications between the parties and evidence of the plaintiff's efforts to remedy the alleged errors or deficiencies in the architectural plans supported the denial of the plaintiff's motion for summary judgment dismissing the defendant's counterclaim alleging professional malpractice (seeBronstein v. Omega Constr. Group, Inc., 138 A.D.3d 906, 908, 30 N.Y.S.3d 653 ; Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d at 607, 976 N.Y.S.2d 164 ). LEVENTHAL, J.P., MILLER, DUFFY and BRATHWAITE NELSON, JJ., concur.

  6. Boesky v. Levine

    2018 N.Y. Slip Op. 33017 (N.Y. Sup. Ct. 2018)

    Plaintiffs seemingly rely on the principle that "[t]he 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". See Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603, 607 (2d Dept. 2013); see also Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789. "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".

  7. Repicci v. Jarvis

    22-3098-cv (2d Cir. Dec. 12, 2023)

    The Plaintiffs have presented evidence that from the start, Jarvis promised - and the Plaintiffs expected - that he would continue to advise them into the future in connection with the policy purchased in 2002. See Regency Club at Wallkill, LLC v. Appel Design Grp., 976 N.Y.S.2d 164, 168 (2d Dep't 2013) ("Continuity of representation may be found to exist where the professional and the client explicitly contemplate the periodic performance of professional services in the future."). A factfinder could conclude that at the time of the 2002 purchase, the Plaintiffs "were left with the reasonable impression that [Jarvis] was, in fact, actively addressing" their needs.

  8. Darby Scott, Ltd. v. Michael S. Libock & Co.

    210 A.D.3d 582 (N.Y. App. Div. 2022)   Cited 1 times

    Order, Supreme Court, New York County (Robert D. Kalish, J.), entered on or about December 31, 2020, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied. The record presents issues of fact as to whether the continuous representation doctrine applies to render plaintiff's accounting malpractice claim timely – namely, whether the work by defendants’ representatives in September and October 2010 constituted a continuation of the services that are the subject of plaintiff's claim, or at least constituted related remedial services (seeRegency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603, 606–607, 976 N.Y.S.2d 164 [2d Dept. 2013] ; Ackerman v. Price Waterhouse, 252 A.D.2d 179, 205, 683 N.Y.S.2d 179 [1st Dept. 1998] ). Issues of fact also exist as to whether defendants breached their duty to plaintiff (seeBerg v. Eisner LLP, 94 A.D.3d 496, 496, 941 N.Y.S.2d 616 [1st Dept. 2012] ).

  9. Bronstein v. Omega Constr. Grp., Inc.

    138 A.D.3d 906 (N.Y. App. Div. 2016)   Cited 4 times

    Contrary to Cetera's contentions, in response to his prima facie showing that the action was commenced against him more than three years after his withdrawal, the plaintiffs succeeded in raising a question of fact as to whether the continuous representation doctrine is applicable so as to toll the running of the three-year statute of limitations. Under the circumstances, the evidence of continuing communications between the parties, and of efforts by Cetera to remedy the alleged errors or deficiencies in the filed plans, supported the denial of Cetera's motion to dismiss the amended complaint insofar as asserted against him (see Regency Club at Walkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603, 607, 976 N.Y.S.2d 164 ; Pitta v. William Leggio Architects, 259 A.D.2d 681, 686 N.Y.S.2d 852 ; Greater Johnstown City School Dist. v. Cataldo & Waters, Architects, 159 A.D.2d 784, 786–787, 551 N.Y.S.2d 1003 ).

  10. Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP

    123 A.D.3d 901 (N.Y. App. Div. 2014)   Cited 16 times

    The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable or whether the action was actually commenced within the applicable limitations period ( see Kitty Jie Yuan v. 2368 W. 12th St., LLC, 119 A.D.3d 674, 988 N.Y.S.2d 898; Beizer v. Hirsch, 116 A.D.3d 725, 983 N.Y.S.2d 615; Williams v. New York City Health & Hosps. Corp., 84 A.D.3d 1358, 1359, 923 N.Y.S.2d 908). Here, the defendants established their prima facie entitlement to dismissal of the complaint based on the expiration of the three-year statute of limitations applicable to the cause of action, inter alia, to recover damages for accounting malpractice ( seeCPLR 214[6]; Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603, 976 N.Y.S.2d 164). In opposition, however, the plaintiffs raised a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation ( see Howish v. Perrotta, 84 A.D.3d 1312, 923 N.Y.S.2d 903; Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 A.D.3d 191, 196, 888 N.Y.S.2d 538; Rehberger v. Garguilo & Orzechowski, LLP, 50 A.D.3d 760, 854 N.Y.S.2d 650).