Professionals get one kind of statute of limitations; all others get a different kind.  That is the lesson of Brown v Deck  2016 NY Slip Op 30337(U)  February 26, 2016  Supreme Court, New York   County  Docket Number: 152769/2015  Judge: Cynthia S. Kern.  For professionals, the statute starts to run on the date of the negligence; for others, not so much.

“The relevant facts are as follows. Plaintiff Robert Brown contracted with defendants to design and build a deck at plaintiffs’ residence. In 2005. defendants completed construction of the deck. On or about July 10. 2012, when Mr. Brown leaned against a portion of the deck rail,  the rail collapsed and he fell approximately fifteen feet to the ground, sustaining injuries. Plaintiffs allege that the deck rail was improperly attached to the deck by an insufficient number of screws which were of inadequate length. On or about March 5. 2015. within three years of when plaintiff Brown was allegedly injured, plaintiffs commenced the instant action. alleging. inter alia. a personal injury cause of action for negligent and defective design and construction.

Defendants moved to dismiss plaintiff Robert Brown’s personal injury cause of action for negligent design and construction solely on the ground that it was barred by the three year statute of limitations for non-medical malpractice claims pursuant to CPLR s 214(6). Pursuant to CPLR § 214(6). the statute of limitations for non-medical. dental. or podiatric malpractice is three years. whether the action is based in contract or tort. The court denied the motion to dismiss on this ground based on the cou11·s finding that defendants had failed to make a prima facie showing that they were an architect or other professional to whom CPLR § 214(6) would apply.”

“Defendants now argue that this court erred in its determination because defendants are entitled to dismissal of plaintiffs’ cause of action for negligent design and construction pursuant to CPLR ~ 214(6) because the accrual date for statute of limitations purposes is completion of performance, the statute of limitations for negligent design and construction claims is three years after completion of performance and plaintiffs did not commence this action within three years after completion of performance. In making this argument. the defendants rely on two Court of Appeals decisions which were cited in their original papers. See City School District of Newburgh ‘” Hugh Stubbins & Associates, Inc. 85 N. Y 2d 535 (1995): Cabrini Medical Center v.  Desina,  64 N.Y.2d 1059 (1985). However. these cases are completely inapplicable to the present case. Initially. neither of these cases hold, as defendants argue. that contractors are professionals for the purposes of determining the applicability of the statute of limitations contained in CPLR ~ 214(6). Moreover. these cases do not address what the statute of limitations is for a personal injury claim. which is what plaintiff is asserting in this action. and when a claim for personal injury accrues for statute of limitations purposes. In both Citv School Dis1rict of Newhurgh and Cabrini Medical Center. the issue before the court was the proper accrual date for a cause of action against a contractor for defective construction where the plaintiff is asserting a claim for damage to real or personal property arising out of the contractual relationship. ”

“However, as the Court of Appeals explicitly noted in Newburgh. the rule that a cause of action for negligent design accrues upon completion of the construction is only applicable where the cause of action is for damages to property which has its genesis in the contractual relationship between the parties and it does not apply to actions for personal injury. It is well established that a cause of action for personal injury, which is what plaintiff is asserting in this action, has a three year statute of limitations which accrues when the plaintiff is injured. See CPLR § 214 (5) (action to recover damages for a personal injury is three years); Snyder v. Town Insulation, Inc., 81 N.Y.2d429 (1993) (cause of action for personal injury accrues on date of injury). Moreover, defendants have still not made a showing that CPLR § 214(6) applies to this action as they have not made any showing that defendants are professionals. ”