Opinion
02-13-2015
NOTHNAGLE HOME SECURITIES CORP., Plaintiff–Respondent, v. BRUCKNER, TILLET, ROSSI, CAHILL & ASSOCIATES and Patrick W. Cahill, Defendants–Appellants.
Lacy Katzen LLP, Rochester (John T. Refermat of Counsel), for Defendants–Appellants. Pheterson Spatorico LLP, Rochester (Derrick A. Spatorico of Counsel), for Plaintiff–Respondent.
Lacy Katzen LLP, Rochester (John T. Refermat of Counsel), for Defendants–Appellants.
Pheterson Spatorico LLP, Rochester (Derrick A. Spatorico of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, and VALENTINO, JJ.
Opinion
MEMORANDUM:Plaintiff commenced this action alleging, inter alia, that defendants negligently appraised a parcel of real property based upon their misclassification of the structure thereon as a modular home rather than a manufactured home, and plaintiff also asserted a breach of contract cause of action. Supreme Court granted in part defendants' motion to dismiss the complaint, dismissing only the breach of contract cause of action. We agree with defendants that the court should have granted the motion in its entirety inasmuch as the negligence cause of action is time-barred. Plaintiff did not commence this action until more than six years after defendants provided plaintiff with an “FHA appraisal” of the real property, asserting in relevant part that, as a result of the misclassification, it was required to indemnify the United States Department of Housing and Urban Development (HUD) for the loss HUD suffered when the purchaser of that property defaulted on a federally insured loan that plaintiff made to the purchaser thereof in reliance upon defendants' appraisal.
We note as a preliminary matter that we agree with defendants that the applicable limitations period for the negligence cause of action is three years (see CPLR 214[4], [6] ; see generally Cator v. Bauman, 39 A.D.3d 1263, 1263, 833 N.Y.S.2d 811 ; Locafrance U.S. Corp. v. Daley–Hodkin Corp., 60 A.D.2d 804, 805, 400 N.Y.S.2d 823 ), and we further agree with defendants that the negligence cause of action accrued on August 19, 2004, the day on which plaintiff received defendants' appraisal containing the misclassification. “In most cases, ... accrual time is measured from the day an actionable injury occurs, ‘even if the aggrieved party is then ignorant of the wrong or injury’ ” ( McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714, quoting Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 ; see generally Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 612 N.E.2d 289 ; City Store Gates Mfg. Corp. v. Empire Rolling Steel Gates Corp., 113 A.D.3d 718, 719, 979 N.Y.S.2d 606 ). Here, plaintiff “reasonably relie[d] on [defendants'] skill and advice [on that date] and, as a consequence of such reliance, [became] liable” for indemnifying HUD (Ackerman, 84 N.Y.2d at 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 ; see Locafrance U.S. Corp., 60 A.D.2d at 805, 400 N.Y.S.2d 823 ). Inasmuch as plaintiff commenced this action more than six years later, the negligence cause of action is time-barred (see Ackerman, 84 N.Y.2d at 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 ; Locafrance U.S. Corp., 60 A.D.2d at 805, 400 N.Y.S.2d 823 ). In light of our determination, we do not address defendants' remaining contentions.
It is hereby ORDERED that the order and judgment insofar as appealed from is unanimously reversed on the law without costs, the motion is granted in its entirety and the complaint is dismissed.