797 Broadway Group, LLC v. Stracher Roth Gilmore Architects ( 2014 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: December 11, 2014                   517903
    ________________________________
    797 BROADWAY GROUP, LLC,
    Appellant,
    v                                     MEMORANDUM AND ORDER
    STRACHER ROTH GILMORE
    ARCHITECTS,
    Respondent.
    ________________________________
    Calendar Date:   October 8, 2014
    Before:   Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.
    __________
    Tomaselli Law Offices, Poestenkill (Patrick J. Tomaselli of
    counsel), for appellant.
    Sugarman Law Firm, LLP, Syracuse (Matthew D. Gumaer of
    counsel), for respondent.
    __________
    Peters, P.J.
    Appeal from an order of the Supreme Court (Kramer, J.),
    entered August 9, 2013 in Schenectady County, which granted
    defendant's motion to dismiss the complaint.
    Plaintiff owns an office building in the City of
    Schenectady, Schenectady County. In response to a 2006 request
    for proposals by the County of Schenectady to provide newly
    constructed or renovated office space to house its Department of
    Social Services and Job Training Agency, defendant, a
    professional partnership that provides architecture services,
    submitted a proposal to plaintiff to redevelop the premises.
    Plaintiff accepted the proposal and also entered into a separate
    agreement with the general contractor, BCI Construction, Inc.,
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    for construction administration and management services.
    Following substantial completion of the work, the County assumed
    use and occupation of the building in early 2009. Approximately
    three years later, the stucco facade of the building began to
    crack and fail, with delamination allegedly occurring over most
    of the building's exterior vertical surfaces.
    In December 2012, plaintiff commenced this action,
    asserting claims sounding in strict liability, breach of implied
    warranty of fitness for a particular purpose, breach of implied
    warranty of merchantability, negligent design or review, breach
    of contract and negligent misrepresentation. In lieu of
    answering, defendant moved to dismiss all six causes of action in
    the complaint. As relevant here, defendant argued that the
    claims either failed to state a cause of action or that they were
    time-barred under the three-year statute of limitations
    applicable to claims of professional malpractice. Supreme Court
    granted defendant's motion, prompting this appeal.
    Plaintiff argues that Supreme Court erred in determining
    that the contract at issue was not a turnkey or design-build
    agreement pursuant to which defendant was responsible for all
    aspects of designing and building the project, as opposed to only
    professional services. In "turnkey" or "design-build"
    construction projects, "an owner contracts with one entity to
    both design and build the project [and t]he turnkey builder is
    responsible for every phase of the construction from final design
    through subcontracting, construction, finishing and testing"
    (Robert A. Rubin, Sarah B. Biser & Catherine M.K. Brown, New York
    Construction Law Manual § 1:23 [33 West's New York Practice
    Series 2013]; see Richard K. Allen, Stanley A. Martin & Leah A.
    Rochwarg, Construction Law Handbook § 6.03 [A], at 134-135 [2d ed
    2013]; see also Charlebois v Weller Assoc., 72 NY2d 587, 590-592
    [1988]). The design-builder generally cannot shift liability and
    is the "single point [of] responsibility" under a design-build
    contract, because it is "the [d]esign-[b]uilder [who] has the
    responsibility of the preliminary and construction design, the
    responsibility of submitting a fixed sum for the construction of
    the project and the responsibility for holding the contracts with
    its trade contractors" (Richard K. Allen, Stanley A. Martin &
    Leah A. Rochwarg, Construction Law Handbook § 6.03 [A], at 134
    -3-                517903
    [2d ed 2013] [emphasis added]). As plaintiff asserts, it follows
    that nearly every design-build project involves the existence of
    two or more contracts – at least one among the members of the
    design-build team and one between the design-builder and the
    owner. Here, however, it was not defendant, the purported
    design-builder, who held the separate contract with the general
    contractor, but plaintiff as the owner. Hence, Supreme Court
    correctly determined that the parties had not entered into a
    design-build agreement, despite their mislabeling the agreement
    as such, because the critical factor in a design-build
    arrangement – that the owner has only a single contract with the
    design-builder – is absent.
    Moreover, a review of the scope of services in the parties'
    agreement indicates that plaintiff contracted with defendant
    solely for professional services relating to the design of the
    renovations to be performed on plaintiff's building. Indeed,
    plaintiff does not dispute that the duties set forth in the
    agreement were "[]consistent with an architect's ordinary
    professional obligations" (Matter of R.M. Klimet & Frances
    Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 542
    [2004]), and the complaint characterizes the parties' agreement
    as one for "professional services." In contrast, the complaint
    describes plaintiff's separate agreement with BCI as one for
    nonprofessional construction administration and management
    services, including the provision of all labor, materials,
    equipment and services necessary to perform the redevelopment
    work.
    In light of the foregoing, we conclude that plaintiff's
    fourth and fifth causes of action – alleging that defendant was
    negligent and breached the parties' contract by failing to use
    reasonable care in rendering its professional services –
    essentially allege professional malpractice (see 
    id. at 542-543;
    City of Binghamton v Hawk Eng'g P.C., 85 AD3d 1417, 1418 [2011],
    lv denied 17 NY3d 713 [2011]). Such claims "'come[] within the
    purview of CPLR 214 (6),'" which sets forth a three-year statute
    of limitations for nonmedical malpractice, "'regardless of
    whether the theory is based in tort or breach of contract'" (City
    of Binghamton v Hawk Eng'g P.C., 85 AD3d at 1418, quoting Rev
    Assembly Mem in Support, Bill Jacket, L 1996, ch 623, at 6;
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    accord Matter of R.M. Klimet & Frances Halsband, Architects
    [McKinsey & Co, Inc.], 3 NY3d at 542). We note that "'a claim
    for professional malpractice against an engineer or architect
    accrues upon the completion of performance under the contract and
    the consequent termination of the parties' professional
    relationship'" (City of Binghamton v Hawk Eng'g P.C., 85 AD3d at
    1418, quoting Town of Wawarsing v Camp, Dresser & McKee, Inc., 49
    AD3d 1100, 1101-1102 [2008]). Defendant provided both invoices
    indicating that it last rendered services to plaintiff in early
    January 2009, and a certificate of substantial completion that
    was signed by plaintiff's representative that acknowledged that
    the work was "sufficiently complete in accordance with the
    [c]ontract [d]ocuments so that [plaintiff could] occupy" the
    premises as of December 19, 2008. Plaintiff signed the
    certificate of substantial completion in March 2009; defendant
    signed it in April 2009. Accordingly, in the absence of any
    contractual obligations extending beyond issuance of the
    certification of substantial completion, the running of the
    statute of limitations commenced in April 2009, at the latest
    (see State of New York v Lundin, 60 NY2d 987, 989 [1983]; City of
    Binghamton v Hawk Eng'g P.C., 85 AD3d at 1419; cf. Town of
    Wawarsing v Camp, Dresser & McKee, Inc., 49 AD3d at 1102-1104).
    Inasmuch as plaintiff did not commence this action until December
    2012, plaintiff's fourth and fifth causes of action are time-
    barred (see CPLR 214 [6]).
    Plaintiff's remaining arguments do not require extended
    discussion. With respect to plaintiff's causes of action for
    strict liability, breach of implied warranty of fitness for a
    particular purpose and breach of implied warranty of
    merchantability, it is settled that "no action lies for breach of
    implied warranty, or what is now known as strict product
    liability, on behalf of an owner against the architect with whom
    he [or she] has [a] contract" (Sears, Roebuck & Co. v Enco
    Assoc., 43 NY2d 389, 398 [1977] [superseded by statute on other
    grounds]; see Queensbury Union Free School Dist. v Walter Corp.,
    
    91 Misc. 2d 804
    , 806-809 [Sup Ct, Warren County 1977]; see also
    Barnett v City of Yonkers, 731 F Supp 594, 601 [SD NY 1990]).
    Thus, plaintiff's claims in that regard were properly dismissed
    for failure to state a cause of action (see CPLR 3211 [a] [7]).
    Finally, plaintiff's claim for negligent misrepresentation was
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    also properly dismissed pursuant to CPLR 3211 (a) (7) because it
    "arise[s] from the same facts as the [architectural] malpractice
    cause[s] of action alleged in the complaint, and do[es] not
    allege distinct damages" (Iannucci v Kucker & Bruh, LLP, 42 AD3d
    436, 437 [2007]; see Rochester Fund Muns. v Amsterdam Mun.
    Leasing Corp., 296 AD2d 785, 788 [2002]).
    Plaintiff's remaining arguments have been considered and
    found to be lacking in merit.
    Lahtinen, Garry, Rose and Lynch, JJ., concur.
    ORDERED that order is affirmed, with costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 517903

Judges: Peters, Lahtinen, Garry, Rose, Lynch

Filed Date: 12/11/2014

Precedential Status: Precedential

Modified Date: 11/1/2024