Opinion
06-1355.
Decided October 30, 2006.
Lewis Greer, P.C., (Daniel P. Adams, Esq., of Counsel), Poughkeepsie, New York, Attorneys for Plaintiff.
Zetlin De Chiara, LLP, (Michael J. Vardaro, Esq., of Counsel), Westbury, New York, Attorneys for Defendant.
By Summons with Notice filed April 20, 2006, plaintiff, Town of Wawarsing (hereinafter the Town) commenced this action for professional malpractice against the defendant engineering firm, Camp, Dresser McKee, Inc. (hereinafter CDM). The action arises out of a contract between the parties for the design and construction of a new public water supply system for the Napanoch Municipal Water District. The parties submissions confirm that CDM provided the engineering design for the entire project and the resident engineering inspection duties for Phases I-III. The Town retained a separate engineering firm, Brinnier and Larios, PC (hereinafter Brinnier) to provide resident engineering inspection services for the remaining Phases IV and V of the Project, consisting of the construction of the water storage tank and the well field. Brinnier certified the project phases IV and V were substantially complete on November 27, 2002. On October 15, 2003, the Ulster County Department of Health granted permission to energize the system and the initial pumping of water began that day. The Town asserts that it soon determined that the flow rate was insufficient and that the water tests showed excessive amounts of iron and manganese.
By Notice of Motion dated July 7, 2006, CDM has moved to dismiss the complaint as barred by the three year statute of limitations governing professional nonmedical malpractice claims (CPLR 214; see Matter of R.M. Kliment Frances Halsbrand, Architects, 3 NY3d 538). CDM asserts that all professional services were completed on or before July 8, 2002, the date of its final invoice for services. The Town acknowledges that CDM issued a certificate of substantial completion for Phase III on August 30, 2002.
This dispute centers on the proper accrual date for plaintiff's claim. In opposition, the Town posits three separate accrual dates by which its claim is ostensibly timely: (1) that the claim did not accrue until the completion of the entire construction project on October 15, 2003, the initial start up date; (2) that a contract "remedial" clause extended the project for one year beyond the 11/27/02 date of substantial completion for Phase V; and (3) that CDM did not fulfill its performance obligations under the contract until "as built" plans were delivered in March, 2004.
A claim for professional malpractice against an engineer accrues upon the completion of of the engineer's performance required under the contract and consequent termination of the professional relationship (see State of New York v. Lundin, 60 NY2d 987; Frank v. Mazs Group, LLC, 30 AD3d 369; Parsons, Brinckerhoff, Quade Douglas v. EnergyPro Constr. Partners, 271 AD2d 233). Contrary to plaintiff's first thesis, the accrual date does not per se coincide with the actual physical completion of the project (compare Board of Educ. of Tri-Valley Cent. School Dist. v. Celotex Corp., 88 AD2d 713, aff'd. 58 NY2d 684 [architect's duties did not end with completion of building but only upon subsequent issuance of a certificate of final payment to the general contractor, as required under the contract]; Frank v. Mazs Group, Inc., supra. [architect required to obtain certificate of occupancy after project completion]; Matter of Energy Services, Inc. V. EnergyPro Construction Partners, 276 AD2d 792 [delivery of as-built plans required after physical project completion]. The point made is that it is the engineer's required performance and completion of same that defines the accrual date. As noted above, CDM completed its work on Phases I-III on August 30, 2002, which included both design and resident engineering services. While CDM's design was utilized for Phases IV and V, those phases were certified by Brinnier as substantially complete on November 27, 2002. That operation of the system did not begin until almost a year later on October 15, 2003 does not serve to extend the accrual date.
Next, citing Vogelstang v. McQuestion, ( 136 Misc 2d 176), plaintiff maintains that a "remedial clause" in the contract effectively extended the date of claim accrual one year beyond the November 27, 2002 date of project substantial completion through November 27, 2003. The pertinent clause reads as follows:
"21. The ENGINEER will be available to furnish engineering services and consultations necessary to correct unforeseen project operation difficulties for a period of one year after the date of statement of substantial completion of the facility. This service will include instruction of the OWNER in initial project operation and maintenance but will not include supervision of normal operation of the system. Such consultation and advice shall be furnished without additional charge except for travel and subsistence costs.* The ENGINEER will assist the OWNER in performing a review of the project during the 11th month after the date of the certificate of substantial completion. (emphasis added)
*Reimbursement to be made at existing Town approved mileage rate and only for properly receipted expenses."
(see McMillan Affirmation, Exhibit "C" and "D" at paragraph 21). The Town maintains that this provision establishes performance obligations that extend the accrual date on two separate bases: the duty to repair for a period of one year after completion of the project, and the obligation imposed by the last, underscored sentence to assist the Town in conducting a project review 11 months after substantial completion of the project. At oral argument on the motion held on October 12, 2006, the Town's counsel focused their argument on the 11 month review requirement. As noted above, the accrual standard keys into actual performance required of the parties and this Court declines to follow the ruling in Vogelstang to the extent that case is deemed to extend an accrual date simply by virtue of an agreement to be available to perform corrective work. The submissions confirm that no such work occurred, or was even requested here.
Nor does the court agree that the 11 month review requirement serves to extend the accrual date. This contract provision merely required CDM to "assist" the owner in conducting an 11 month review and it is undisputed that the Town did not request any such assistance. It is important to recognize here that at the time CDM agreed to this contract provision it was obligated to perform both design and resident engineering inspection services. For reasons unexplained in the papers, the Town retained Brinnier to provide the on-site resident inspections for Phases IV and V and it was the Brinnier firm that ultimately certified the project as ready for Department of Health approval on September 30, 2003 (see McMillan affirmation, Exhibit "N"). In this context, the Court does not agree with the Town's argument that the "remedial" clause extended the accrual date.
Finally, the Town correctly argues that where, as here, an engineer or architect is contractually required to provide "as-built" plans, performance is not complete for claim accrual purposes until such time as the plans are delivered ( Matter ov Energy Services, Inc. v. EnergyPro Constr. Partners, supra. 276 AD2d at 793; Parsons, Brinckerhoff, Quade Douglas v. EnergyPro Constr. Partners, supra., 271 AD2d at 234). The submissions include correspondence in the fall of 2002 from the Town's attorney to CDM's project engineer, Richard Molongowski, requesting the "as built" drawings for Phases I-III, and observing that Brinnier would be submitting "as-built" for Phases IV and V (see McMillan Affirmation, Exhibit P). By letter dated January 7, 2003, Molongowski responded that the plans had been delivered (see Vardaro Affirmation, Exhibit "F"). The Town, however, cites to a March 24, 2004 letter from Molongowski stating "CDM will be submitting the record drawings for . . . Phases 1, 2 and 3 and the Water Storage Tank to the Town of Wawarsing. Receipt of these drawings completes our obligations with respect to the . . . project". The Town maintains that Molongowski's March 24, 2004 letter constitutes an admission that CDM did not complete its obligation to deliver "as builts" until March, 2004 thereby rendering the claim timely. While Molongowski's supporting affidavit does not specifically explain the letter sequence, he does observe that after July 8, 2002, CDM did "provide a second set of record drawings to the Plaintiff because it had apparently lost the original set" (Molongowski Affidavit at paragraph 7). At oral argument on the motion, the Town asserted at the very least that a question of fact exists as to the submission date for the "as-built" plans.
The Court disagrees. What is most telling here is that at no point does the Town actually deny having already received the plans prior to March, 2004. The opposition affidavit of the Town's supervisor, James V. Dolaway, makes no reference to the correspondence exchange leading to Molongowski's January 7, 2003 letter submission of the plans. Instead Dolaway simply characterizes Molongowski's March 24, 2004 letter as an admission. Molongowski's affidavit, however, represents that a second set of plans was provided as a courtesy and such an event would not extend the accrual date. Absent an affirmed statement from the Town that the plans were not received before March, 2004 the Court finds no question of fact and looks to Molongowski's January 7, 2003 letter as the delivery date for the "as-builts".
In sum, the court finds that plaintiff's claim against CDM accrued, at the latest, on January 7, 2003. Since the action was not commenced until April, 2006, defendant's motion to dismiss the complaint as barred by CPLR 214 is granted, without costs.
The foregoing constitutes the Decision and Order of the Court. All papers, including this Decision and Order are returned to the attorney for defendants. The signing of this Decision Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.
SO ORDERED.