[DOWNLOAD] "Morris Sosnow Et Al. v. Samuel Paul Et Al." by Supreme Court of New York * eBook PDF Kindle ePub Free
eBook details
- Title: Morris Sosnow Et Al. v. Samuel Paul Et Al.
- Author : Supreme Court of New York
- Release Date : January 19, 1974
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
Defendants, licensed architects, were retained by plaintiffs on or about June 19, 1961 to prepare all architectural, mechanical and structural engineering drawings and specifications for the construction of a three-apartment-building development, to be known as "Birchwood Towers", in Forest Hills, Queens, New York City. The buildings were subsequently constructed in accordance with defendants plans and specifications and were completed on or about April 26, 1965. Alleging two causes of action, the first for negligent performance of services, or professional malpractice, and the second for breach of contract, plaintiffs charged that sometime subsequent to construction they became aware of the fact that the three buildings were beginning to show severe masonry cracking at their exteriors, bulging of large masonry areas at their lintels and cracking of roof parapets. It was claimed that this was directly due to, among other things, defendants failure to provide for expansion and control joints throughout the buildings to properly control expansion, contraction and creep. It is undisputed that the summons commencing the suit was served on defendants on or about September 30, 1971. Both parties agree that a three-year Statute of Limitations applies to both causes of action, since defendants alleged malpractice is truly the basis for the cause of action sounding in breach of contract (see Webber v. Herkimer & Mohawk St. R. R. Co., 109 N. Y. 311). The parties disagree, however, as to when the causes of action actually accrued. Defendants contend that they accrued no later than the time of completion date of the buildings, April 26, 1965. Plaintiffs contend that the right to sue accrued upon the discovery of the damage to the buildings, which, without statement of specific date, they contend, in their opposing affidavit only, occurred sometime within the three-year period preceding the service of the summons. Special Term, in apparent agreement with plaintiffs, held, in effect, that the discovery rule urged by plaintiffs might be applicable in this case and denied defendants motion, predicating its decision upon the decisions in Flanagan v. Mount Eden Gen. Hosp. (24 N.Y.2d 427) and Siegel v. Kranis (29 A.D.2d 477). We think that Special Term erred both in its holding and in its reliance upon the cited cases. The rule in cases where the gravaman of the suit is professional malpractice is now and has always been that the cause of action accrues upon the performance of the work by the professional (Gilbert Props. v. Millstein, 40 A.D.2d 100, 102; Seger v. Cornwell, 44 Misc. 2d 994). This rule was relied on by defendants in their brief on this appeal and was amply substantiated by them with viable case law. Plaintiffs have failed to cite a single applicable case abrogating that rule. We have found none. The cases cited by Special Term also supply no authority for its ruling. The Flanagan case permits an exception to the cited rule only in medical malpractice cases where the malfeasance charged is leaving a foreign object in the patients body. In Schiffman v. Hospital for Joint Diseases (36 A.D.2d 31) we made it clear that it was the opinion of this court that Flanagan should be limited to such [43 A.D.2d 978 Page 979]