Opinion
No. 602342/15.
08-11-2015
Victor PAPPAS, Plaintiff, v. Laurence M. HAYNES, Land Surveyor, Laurence M. Haynes, d/b/a Haynes, Land Surveyor, and Michael Minto d/b/a Minto Precision Layout, Defendants.
Paul J. Solda, Esq., New York, Attorney for the Plaintiff. Tromello, McDonnell & Kehoe, Melville, Attorneys for the Defendant Haynes. Kristen M. Mitaritonna, Esq., Little Neck, Attorney for the Defendant Minto.
Paul J. Solda, Esq., New York, Attorney for the Plaintiff.
Tromello, McDonnell & Kehoe, Melville, Attorneys for the Defendant Haynes.
Kristen M. Mitaritonna, Esq., Little Neck, Attorney for the Defendant Minto.
RANDY SUE MARBER, J.
Upon the foregoing papers, the motion (Mot.Seq.01) by the Defendants, LAURENCE M. HAYNES, Land Surveyor, LAURENCE M. HAYNES, d/b/a HAYNES,
LAND SURVEYOR (hereinafter "Haynes"), the motion (Mot.Seq.02) by the Defendant, MICHAEL MINTO d/b/a MINTO PRECISION LAYOUT (hereinafter "Minto"), both seeking an Order dismissing the Complaint, pursuant to CPLR § 3211(a)(1), (5), (7) and 214(6), and the Cross-motion (Mot.Seq.03) by the Plaintiff seeking a default judgment against the Defendant, Minto, pursuant to CPLR § 3215, and for sanctions against the Defendant, Minto's attorney, pursuant to the Rules of the Chief Administrator to the Courts, Part 130.1, are determined as hereinafter provided.
The Plaintiff commenced this action by e-filing a Summons and Verified Complaint in the Office of the Nassau County Clerk on April 15, 2015. (See Copy of the Summons and Verified Complaint annexed to the Notice of Motion (Mot.Seq.01) as Exhibit "A") The Summons and Verified Complaint was served upon the Defendant, Haynes, by personal service, on May 7, 2015. The Summons and Verified Complaint was served upon the Defendant, Minto, by personal service, on May 20, 2015.
In this action, the Plaintiff alleges that on June 3, 2010 he entered into a contract to purchase a property located at 182 Whaley Street, Freeport, NY. (Id. at ¶ 6) The Plaintiff alleges that at the time of execution of the contract, it was understood that the northern boundary line of the property was approximately five feet off the rear wall of the properties (sic ) garage building. (Id. at ¶ 7) The Plaintiff alleges that it became a condition of closing that a survey by a licensed surveyor would have to be undertaken to authenticate all such boundary lines. (Id. at ¶ 8) The Plaintiff alleges that he was directed to the Defendant, Haynes, to undertake the survey and that the Defendant, Haynes, subcontracted the land measuring to the Defendant, Minto. (Id. at ¶¶ 10–11)
The survey, which was completed and issued on July 2, 2010, purported to show that the northern boundary of the property line was approximately 2 ½ feet longer than the pre-existing fence line. (Id. at ¶¶ 12–13) The Plaintiff alleges that, based upon his reliance on the size of the land depicted in the survey and the accuracy of the survey, he purchased the property on July 20, 2010. (Id. at ¶¶ 15–18) After purchasing the property, the Plaintiff reset the northern boundary line, in accordance with the survey, by erecting a fence. (Id. at ¶ 19) The Plaintiff alleges that in late 2013 he received a letter from his neighbor, Frederick Schmidt, stating that he was trespassing on Schmidt's property. (Id. at ¶ 20–21) The Plaintiff alleges that he conferred with the Defendant, Haynes, who confirmed the accuracy of the survey. (Id. at ¶ 22)
On January 20, 2014, the Plaintiff was served with a lawsuit brought by his neighbor, Mr. Schmidt. (Id. at ¶ 23) In that action, Mr. Schmidt alleges that the Plaintiff committed trespass by erecting a fence and encroaching on his property. Mr. Schmidt sought damages, ejection and injunctive relief. (Id. at ¶ 24) The Plaintiff alleges that he was compelled to defend the Schmidt lawsuit and upon the Defendant, Haynes, confirming the accuracy of the survey again, the Plaintiff asserted affirmative defenses, believing that Schmidt's claims lacked merit. (Id. at ¶¶ 25–27)
In December of 2014, the Plaintiff alleges that he contacted the Defendant, Haynes, to secure his testimony or affidavit in connection with defending the Schmidt lawsuit. (Id. at ¶ 28) The Plaintiff alleges that on January 5, 2015, the Defendant, Haynes, disclosed to him, for the first time, that the subject survey was issued in error. (Id. at ¶ 29) The Plaintiff alleges that on January 23, 2015, the Defendant, Haynes, telephoned the Plaintiff's attorney and reiterated that the survey was in error in part because the Defendant, Minto, measured the property lines errantly. (Id. at ¶ 30) The Plaintiff alleges that the Schmidt lawsuit compelled him to spend significant time and money to defend that lawsuit. (Id. at ¶ 33)
Based on the foregoing facts alleged in the Complaint, the Plaintiff asserts five causes of action. The first cause of action alleges that the Defendants agreed to provide the Plaintiff with an accurate and certified land survey of the subject property and that they did not provide him with an accurate certified land survey. The Plaintiff alleges that the Defendants breached the agreement, and as a result, the Plaintiff has been damaged.
The second cause of action alleges that he purchased the land in reliance on the information generated by the Defendants and on their integrity. The Plaintiff alleges that the Defendants made false misrepresentations as a statement of fact and due to his reliance on such misrepresentations, he lost a significant portion of the property he purchased.
The third cause of action alleges that the Defendants had a duty and obligation to conform to a certain standard of conduct for the protection of others against unreasonable risk. The Plaintiff alleges that the Defendants breached such duty by not exercising reasonable care in the exercise of their services and as a result the Plaintiff suffered injuries.
The fourth cause of action alleges that the Defendants' act was performed in the conduct of business, that was consumer oriented, that was misleading and reckless and was the proximate cause of the Plaintiff's injury. The Plaintiff alleges that as a consequence, the Defendants violated N.Y. General Business Law § 349.
The fifth cause of action alleges that the Defendants' negligent and reckless disregard of the probability of causing emotional distress caused the Plaintiff to experience severe emotional suffering. The Plaintiff alleges that his suffering was grievous and carried shame, humiliation, anger, embarrassment and nausea. The Plaintiff alleges that the actual and proximate cause of his emotional distress was the Defendants' act of recklessly issuing a faulty survey.
In support of its motion (Mot.Seq.01), the Defendant, Haynes' attorney contends that the Plaintiff's failure to commence this action within the time period prescribed by the applicable statute of limitations is grounds for dismissal. Specifically, the Defendant, Haynes' attorney argues that, pursuant to CPLR § 214(6), an action to recover damages for non-medical malpractice must be brought within three years, regardless of whether the action is based upon the conduct of tort. The Defendant, Haynes' attorney contends that the statute was amended in 1996 to establish a three year statute of limitations to all professional non-medical malpractice actions, regardless of how they are classified in the Complaint. The Defendant, Haynes' attorney argues that the claims set forth in the Complaint clearly show that the Plaintiff is seeking relief for professional malpractice, which has a three year statue of limitations.
The Defendant, Haynes' attorney further argues that the accrual date for statute of limitations purposes is the date of completion of performance. In this case, the date of completion of performance by the Defendants was July 2, 2010, the date in which the Defendants signed and sealed the survey. Accordingly, the Defendant, Haynes' attorney argues that any cause of action for which the Plaintiff now seeks relief against the Defendants would have to have been asserted by July 2, 2013.
The Defendant, Haynes' attorney argues that since the Summons and Verified Complaint in this action was filed on April 15, 2015, almost two years after the expiration of the statute of limitations, such claims are time barred. The Defendant, Haynes' attorney argues that Courts have routinely denied plaintiff's assertions that the cause of action should accrue when the plaintiff first notices or discovered the deficiencies. The Defendant, Haynes' attorney argues that based on the applicable case law, liability arises upon a professional's completion of services, which in this case was on July 2, 2010 when the survey was issued.
The Defendant, Haynes' attorney further argues that the Plaintiff cannot maintain a cause of action under N.Y. General Business Law § 349(a), because the allegations set forth in the Complaint relate to a private transaction without ramifications to the public at large. He further argues that the Plaintiff has not and cannot establish an impact on consumers, and as such, the cause of action for violation of General Business Law § 349(a) must be dismissed.
Finally, the Defendant, Haynes' attorney argues that the Plaintiff cannot maintain a cause of action for intentional infliction of emotional distress because he fails to allege any extreme or outrageous conduct on the part of Haynes and/or intent to cause severe emotional distress and he fails to allege that Haynes' services approached a level that transcends the bounds of decency. Further, the Defendant, Haynes' attorney argues that liability for a claim of intentional infliction of emotional distress can only be found where there is conduct so extreme that it is regarded as atrocious and utterly intolerable in a civilized community, and the Plaintiff has failed to make such a showing or even address this standard.
In support of the motion (Mot.Seq.02) brought by the Defendant, Minto, his attorney repeats and reiterates all of the arguments set forth in the motion (Mot.Seq.01) brought by the Defendant, Haynes.
In support of the Plaintiff's Cross-motion (Mot.Seq.03), his attorney argues that the Defendant, Minto, failed to answer or file a pre-answer motion before the required date of June 20, 2015. The Plaintiff's counsel argues that the Defendant, Minto, was personally served with the Summons and Complaint on May 20, 2015, and as such, pursuant to CPLR § 3211(e), an answer or motion must have been filed by June 20, 2015. The Plaintiff's counsel argues that since the Defendant, Minto, did not file his motion (Mot.Seq.02) until July 15, 2015, it must be denied.
The Plaintiff's counsel further contends that the Defendant, Minto's motion is plagiarized from the Defendant, Haynes' motion and requests that sanctions be imposed against the Defendant, Minto's attorney. The Plaintiff's counsel contends that the Defendant, Minto's motion was frivolous because it was a duplicative motion that was plagiarized. The Plaintiff's counsel states that several days prior to the day the Defendant, Minto, filed his motion (Mot.Seq.02), the attorneys engaged in settlement discussions. The Plaintiff's attorney alleges that the attorney for the Defendant, Minto, stated "that we are one of the biggest law firms and will delay this case for years." (See Affirmation in Opposition and in Support of Cross–Motion at ¶ 17) The Plaintiff's counsel contends that they have been forced to respond to two identical motions brought by two defendants under separate filings and that, along with the plagiarism, is grounds for sanctions.
In opposition to the motions to dismiss (Mot.Seq.01), the Plaintiff initially contends that it should be denied because the Defendant, Haynes, failed to move under the applicable rule subsection, constituting a procedural error. The Plaintiff further contends that the tolling provisions of CPLR § 203(g) are applicable and that the statute of limitations did not begin to run until his discovery of the error and inaccuracies in the survey. Accordingly, the Plaintiff argues that the statute of limitations was tolled, at the very least, until January 20, 2014, when the Schmidt lawsuit was served on him. The Plaintiff argues that the time within which an action must be commenced is computed from the time when facts were discovered or from when they could have been discovered with reasonable diligence. The Plaintiff argues that he was only first put on notice that the survey was inaccurate in January 2014 and that he could not have reasonably expected or foreseen inaccuracies to the survey issued by the Defendants.
The Plaintiff argues that the Defendant, Haynes, should be equitably estopped from asserting a statute of limitations defense due to the assertions he made to the Plaintiff in 2014 that the survey was accurate.
With regard to his claim for violations of N.Y. General Business Law § 349, the Plaintiff argues that there is a strong likelihood that other individuals who purchased homes, using the Defendants' surveys, may be impacted by their recklessness. The Plaintiff argues that their practices may have a broader impact on other homeowners at large.
Finally, the Plaintiff argues that he has suffered emotional distress as a consequence of the Defendants' negligent and reckless disregard of its acts and that he began suffering from such distress at the time he was served with the Schmidt lawsuit. Thus, the Plaintiff contends that he has set forth a cognizable cause of action for intentional infliction of emotional distress.
In opposition to the Plaintiff's Cross-motion (Mot.Seq.03), the Defendant, Minto's counsel contends that the Plaintiff's attorney supports his contention that sanctions should be imposed by perjuring himself. The Defendant, Minto's counsel contends that the Plaintiff's counsel's allegation that she threatened to delay the case is untrue and that she never made those statements. The Defendant, Minto's counsel contends that not only did she never utter those words, but they were involved in settlement discussions, thereby indicating that she had no desire to delay the case. Further, the Defendant, Minto's counsel contends that her filing of a motion to dismiss further reflects her desire to dispose of the case quickly and expeditiously.
As to the Plaintiff's attorney's allegation of plagiarism, the Defendant, Minto's attorney concedes that the arguments contained in her Affirmation were adopted from the Defendant, Haynes' motion, but that it is common practice for parties in litigation to adopt the same arguments when they are in a similar legal position. The Defendant, Minto's attorney contends that the Plaintiff's attorney's argument that he has been forced to respond to two identical motions cannot reasonably be viewed as prejudicial. She argues that in a litigation involving more than one defendant, the Plaintiff's attorney would have to expect to respond to multiple motions.
Furthermore, the Defendant, Minto's attorney contends that since the Plaintiff's attorney
brought a cross-motion seeking sanctions based on a completely fabricated conversation, sanctions should be imposed on him.
As to the branch of the Plaintiff's cross-motion (Mot.Seq.03) seeking a default judgment, the Defendant, Minto, contends that any delay in formally appearing was brief and that based on the arguments set forth in his motion (Mot.Seq.02), he has a meritorious defense. The Defendant, Minto's attorney contends that on June 5, 2015, she filed a notice of appearance advising the parties that she would be appearing for the Defendant, Minto. The Defendant, Minto's attorney contends that there were settlement discussions among the parties and that once it was realized that a settlement would not be reached she filed a motion to dismiss on July 17, 2015. The Defendant, Minto's attorney contends that any delay in formally appearing by motion was brief and caused no prejudice to the Plaintiff as he was clearly on notice of the Defendant, Minto's appearance.
In reply in further support of his motion (Mot.Seq.01), the Defendant, Haynes, first contends that although his motion contained a procedural defect, by not citing to CPLR § 3211(a)(5) in his Notice of Motion, it is clear from the arguments set forth in his motion along with his reference to CPLR § 214(6), which establishes the three year statute of limitations for professional malpractice claims, in the Notice of Motion that he is seeking dismissal based on the Plaintiff's untimely commencement of this action. The Defendant, Haynes, contends that the Plaintiff cannot show that he has been prejudiced by such an error. The Court agrees. The Defendant, Haynes' failure to specifically cite to CPLR § 3211(a)(5) in the Notice of Motion was a procedural defect that did not prejudice the Plaintiff or the other Defendant. Accordingly, it would not be appropriate to deny the Defendant, Haynes' motion based on such a defect.
Furthermore, the Defendant, Haynes, contends that contrary to the Plaintiff's argument, it is well settled in New York that a statute of limitations against professionals, including land surveyors, accrue when the professional services are complete and not when the owner discovers the damage. The Defendant, Haynes, argues that based on the applicable law, the Plaintiff must have commenced this action by July 2, 2013. Further, the Defendant, Haynes, contends that the Courts of this jurisdiction have expressly determined that the tolling provisions, pursuant to CPLR § 203, do not apply to professional malpractice actions.
Further, the Defendant, Haynes, argues that the Plaintiff's speculative statement in his affidavit that other consumers could be affected by the Defendants is not the standard for stating a claim under N.Y. Gen. Bus. Law § 349. The Defendant, Haynes, contends that contracts between parties that are unique to the parties, such as the agreement in this case, do not fall within the ambit of the statute.
Finally, as to the Plaintiff's cause of action for intentional infliction of emotional distress, the Defendant, Haynes, argues that the Plaintiff fails to address in his opposition that the allegations in the complaint fail to set forth the elements of such a cause of action. Specifically, the Defendant, Haynes, argues that the Plaintiff fails to allege extreme or outrageous conduct by the Defendants, intent to cause severe emotional distress or that the acts of the Defendants approach a level that transcends the bounds of decency.
Where, as here, a party moves to dismiss a complaint pursuant to CPLR § 3211(a)(5) on the ground that it is barred by the statute of limitations, that party bears the initial burden of establishing the affirmative defense by prima facie proof that the time in which to sue has expired. (Assad v. City of New York, 238 A.D.2d 456 [2nd Dept.1997] ) Once the movant makes such a showing, the burden shifts to the opponent to aver evidentiary facts establishing that the action was timely commenced or falls within an exception to the statutory period. (Savarese v. Shatz, 273 A.D.2d 219, 220 [2nd Dept.2000] )
Here, the Defendants contend that the Plaintiff's claims, which sound in professional malpractice, are subject to a three year statute of limitations. The Plaintiff does not dispute that his claims are subject to a three year statute of limitations. However, the Plaintiff contends that the tolling provision, pursuant to CPLR § 203, applies and that the statute of limitations did not begin to run until his discovery of the Defendants' errors.
"An action for professional malpractice must be commenced within three years of the date of accrual. A claim accrues when the malpractice is committed, not when the client discovers it." (Williamson v. PricewaterhouseCoopers, LLP, 9 NY3d 1 [2007] ) In Gelwicks v. Campbell, 257 A.D.2d 601 [2nd Dept.1999], which is cited to by the Defendants, the Appellate Division, Second Department, held that plaintiff's cause of action for malpractice against an engineer, who certified that the plaintiff's septic system was properly constructed, accrued upon the completion of the defendant's work. The Court held that the plaintiff's contention that their cause of action only accrued when the damages became apparent was without merit. (Id. ) Here, the Plaintiff's contention that the Court in Gelwicks found that the Plaintiff's claims substantively had no merit is incorrect. Further, contrary to the Plaintiff's characterization of the Gelwicks case as a "very narrow holding", the Court disagrees. The Court's holding in Gelwicks follows the well-established legal principal that a professional malpractice claim accrues when the professional services are completed.
Further, the Plaintiff does not cite to a single case to support his position that the statute of limitations should have accrued upon his discovery of the alleged malpractice. Accordingly, the Plaintiff's claims for professional malpractice are barred by the statute of limitations.
Additionally, the Plaintiff has failed to allege facts to set forth cognizable claims for violations of the N.Y. General Business Law § 349 and intentional infliction of emotional distress. To state a cause of action for a violation of General Business Law § 349, plaintiff must show that defendants' practices are consumer oriented, misleading in a material way, and that plaintiff was injured by these practices. (ADVO, Inc. V. The B.C. Corp. Of NY, 13 Misc.3d 1213(A) [Nass. Cty. Sup.Ct.2006] ) The statute addresses practices that have a broader impact on consumers at large. (Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20 [1995] ) "Private contract disputes, unique to the parties, for example, would not fall within the ambit of the statute." (Id. )
Here, the Plaintiff has failed to set forth facts to show that the Defendants' alleged conduct has a broader impact on consumers at large. The conduct alleged by the Plaintiff is unique to a private transaction between him and the Defendants and unique to a particular piece of property.
"It is well established that the tort of intentional infliction of emotional distress consists of four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." (Andrews v. Bruk, 220 A.D.2d 376 [2nd Dept.1995] ) "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Id. )
Here, the factual allegations made against the Defendants, even when taken as true, do not rise to the level of outrageous conduct necessary to sustain a cause of action for intentional infliction of emotional distress.
As to the Plaintiff's Cross-motion (Mot.Seq.03), seeking a default judgment against the Defendant, Minto, CPLR § 3215 provides for the granting of a default judgment based upon the failure of a defendant to appear or answer a summons and complaint. However, the preference of the Court is to decide cases on their merits. (Lichtman v. Sears, Roebuck & Co., 236 A.D.2d 373 [2nd Dept.1997] ; Davies v. Contel of New York, 155 A.D.2d 809 [3rd Dept.1989] )
In the instant matter, the Defendant, Minto's brief delay in formally appearing in this action did not cause any prejudice to the Plaintiff or any party to this action. The Defendant, Minto's attorney filed a Notice of Appearance on June 5, 2015, which was prior to his time to respond, advising the parties that she was representing the Defendant, Minto in this action. Thereafter, the parties engaged in settlement negotiations. The Plaintiff has not shown that he in any way suffered prejudice by the brief delay in the Defendant, Minto, formally appearing. Further, the Defendant, Minto, through the arguments set forth in his motion (Mot.Seq.02), has shown that he has a meritorious defense in this action.
As to the Plaintiff's request for sanctions to be imposed upon the Defendant, Minto's attorney, the Rules of the Chief Administrator of the Courts empower this Court with the authority to impose sanctions and award costs for conduct which is determined to be frivolous. (22 NYCRR 130–1.1 et seq ) Conduct is deemed to be frivolous if "it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law." (22 NYCRR 130–1.1 [c][1] ) In determining whether particular conduct is frivolous as contemplated by the regulation, the Court is required to consider "(1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, or was brought to the attention of counsel or the party." (22 NYCRR 130–1.1 [c][3] ).
Here, the conduct complained of by the Plaintiff as frivolous is the Defendant, Minto's attorney filing a duplicative motion that was allegedly plagiarized and the allegation that the Defendant, Minto's attorney threatened to delay the case for years. First, the Defendants, Minto and Haynes, are essentially in the same legal position in this case, and as such, it is reasonably expected that they would each move to dismiss on the same grounds and assert the same or similar legal arguments. The Plaintiff's argument that he was somehow prejudiced by having to respond to two identical motions is without merit, as a Plaintiff should expect to respond to multiple motions when there are multiple defendants.
Second, the Defendant, Minto's counsel vehemently denies ever making the statements that the Plaintiff accuses her of making. Other than the conflicting allegations of the Plaintiff's and the Defendant, Minto's attorneys, there is no proof as to whether such statements were or were not made.
Based on the foregoing, the Court, in its discretion, hereby declines to impose sanctions on either the Defendant, Minto's attorney or the Plaintiff's attorney.
Accordingly, it is hereby
ORDERED, that the Defendants' motions (Mot. Seq. 01 and 02) are GRANTED and the complaint is DISMISSED; and it is further
ORDERED, that the Plaintiff's Cross-motion (Mot.Seq.03) seeking a default judgment and sanctions, is DENIED.
All matters not decided herein are hereby denied.
This constitutes the decision and order of this court.