Malpractice, as delineated from mere negligence, is that of a “professional toward a person for whom a service is rendered. Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D .2d 624 (I 51 Dept 1999). ” The statute of limitations for all professionals other than physicians is 3 years. It’s 2.5 years for physicians. How to prove that the claimed wrong too place more than three years prior to commencement of the malpractice suit is an art. Judge Kern, in one of her last Supreme Court cases prior to her elevation to the Appellate Division discusses how to do it 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.
“”A defendant who seeks dismissal ofa complaint pursuant to CPLR § 321 l(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden ofproving,primafacie, 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.D .2d 624 (I 51 Dept 1999). It is well-settled that structural engineers are professionals for the purposes ofCPLR § 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, primafacie, 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 oflimitations 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 timeframe 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. “