It may be just one townhouse on 18th Street, but the ramifications of a bad “underpinning” to a foundation go on and on. In Bose v Think Constr. LLC 2017 NY Slip Op 30944(U)
May 4, 2017 Supreme Court, New York County Docket Number: 154628/2015 Judge Cynthia S. Kern (just yesterday elevated to the Appellate Division, First Department-congrats) discussed the commencement of the statute of limitations for “professionals” under CPLR 214(6).
“The relevant facts and procedural history of this case are as follows. In August 2009, the plaintiffs and defendant Think Construction LLC (“Think”) entered into a contract for Think, as the general contractor, to perform construction work at the plaintiffs’ townhouse located at 322 East 18’h Street, New York, New York (“plaintiffs’ property”) (hereinafter referred to as the “Project”). The plaintiffs also retained Nick Dine (“Dine”) and his firm Murphy and Dine, LLC (“MAD”) (hereinafter referred to as the “Dine Defendants”) to serve as the architect on the Project. Plaintiffs allege that the Dine Defendants needed “an architect of record” to sign-off on their work and hired defendant Meltzer/Costa & Associates, Architecture & Engineering, LLP (“Meltzer”). In or around July 2009, MAD retained Pennmax to perform certain structural engineering services on the Project. Demolition on the Project began in or around September 2009 during which time the Dine Defendants allegedly discovered issues with the existing conditions of the plaintiffs’ home thereby prompting the plaintiffs to expand the scope of the Project to a “full renovation.” As part of the revised scope of the Project, plaintiffs decided to lower the cellar floor requiring underpinning of the party wall between the plaintiffs’ property and the neighboring property located at 320 East 181 h Street, New York, New York which is owned by Brian Harris and Fukuko Yahagi-Harris (the “Harris neighbors”) (hereinafter referred to as the “Harris Home”). MAD allegedly retained the moving defendants to design the underpinning which plaintiffs allege was performed in error. The Project allegedly caused the Harris Home to sustain damages, including, inter alia, cracks in the facade. Thereafter, in or around March 2012, the Harris neighbors commenced an action against the plaintiffs in this action as well as Think (the “Harris lawsuit”). Think commenced a third-party action against Pennmax and other entities involved with the Project. Thereafter, the Harris neighbors amended their complaint to include such third-party defendants as direct defendants. In or around June 2013, Everest National Insurance Company (“Everest”), first-party insurer and subrogee of the Harris neighbors, commenced a lawsuit seeking to recover the funds it expended to settle the Harris neighbors’ insurance claim (the “Everest lawsuit”). Everest named plaintiffs and Think as defendants and later amended the lawsuit to include the third-party defendants. The Everest lawsuit was then consolidated with the Harris lawsuit in or around October 2013.”
“The court first turns to that portion of the moving defendants’ motion to dismiss plaintiff’s negligence/malpractice claim pursuant to CPLR § 321 l(a)(5) on the ground that it is time-barred. “A defendant who seeks dismissal of a complaint pursuant to CPLR § 321 l(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired.” Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403, 405 (2d Dept 2007). Pursuant to CPLR § 214(6), “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based on contract or tort” must be commenced within three years. Malpractice is the “negligence of a professional toward a person for whom a service is rendered.” Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D2d 624 (I 51 Dept 1999). It is well-settled that structural engineers are professionals for the purposes of CPLR § 214(6), see Travelers lndem. Co. v. Zeff Design, 60 A.D.3d 453 (1st Dept 2009), and that “a claim for professional malpractice against an engineer … accrues upon the completion of performance under the contract and the consequent termination of the parties’ professional relationship,” Town of Wawarsing v. Camp, Dresser & McKee, Inc., 49 A.D.3d 1100, 1101-02 (3d Dept 2008). Here, this court finds that the moving defendants’ motion to dismiss plaintiffs’ negligence/malpractice claim is denied on the ground that the moving defendants have failed to establish, prima facie, that such claim is time-barred. In support of their motion, the moving defendants provide the affirmation of their counsel in which he conclusorily affirms that the moving defendants completed their services on the Project by October 2010, before the underpinning work began on the Project. However, such affirmation is insufficient to establish,primafacie, that plaintiffs’ negligence/malpractice claim is time-barred, without some other admissible evidence in support thereof. See Banks v. Auerbach, 56 A.D.2d 819, 819 (!”Dept J 977)(denying defendant’s motion to dismiss on the basis of statute o limitations on the ground that “[t]he factual basis for defendant’s motion rests entirely on an affirmation of an attorney who [does not have] personal knowledge of the facts …. “) The moving defendants have failed to provide any admissible evidence, such as an affidavit or testimony of someone with personal knowledge, of when the moving defendants actually completed their services on the Project. The moving defendants have provided the affidavit of defendant Pensiero but nowhere in his affidavit does Pensiero affirm that the moving defendants completed their services on a specific date nor does he even discuss the completion of services on the Project. Rather, Pensiero merely affirms that the work performed by the moving defendants was rendered “as outlined in the proposal/contract.” However, an examination of such proposal/contract does not specify a time frame for completion of the work on the Project. Moreover, plaintiffs provide their affidavit in which they affirm that the moving defendants were still performing their services on the Project as late as August 2012 when they performed a site visit to the Project and prepared a report in accordance with the proposal/contract.”