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2012 NY Slip Op 31551(U)

BOARD OF MANAGERS OF BAYSIDE MEWS CONDOMINIUM. Plaintiff, v. ROBERT A. POSNER, P.E. Defendant.

34774/09, Motion Seq. No. 2.

Supreme Court, Queens County.

June 13, 2012.

ORIN R. KITZES, Judge.

Plaintiff commenced this action against defendant Posner on December 30, 2009, based upon claims of professional malpractice, breach of contract and fraud arising in connection with the design and construction of a parapet wall as part of a renovation of the condominium's garage deck. Plaintiff alleges it retained defendant Posner to act as the professional engineer and design and prepare building plans for the parapet wall, and provide supervisory services. Plaintiff also alleges that defendant Posner committed negligence in designing the plans for the parapet wall and in failing to superintend properly the construction work performed by the contractor, Technical Construction Services, Inc. (TCS). It is alleged that defendant Posner failed to provide for proper drainage in the wall, and negligently permitted TCS to construct the wall in an improper fashion, and as a result of the defective plans and negligent supervision of the work, the parapet wall began to crack, requiring its demolition and reconstruction. Plaintiff further alleges that defendant Posner failed to prepare proper change orders, and falsely certified that work on the parapet wall had been authorized by plaintiff and completed. Plaintiff additionally alleges that defendant Posner misrepresented he was an "able, competent and efficient," and would "properly and fairly bill [it] for the work," and "complete & perform all of their [sic] contractual obligations in a proper and timely manner," to fraudulently induce plaintiff to retain him. Plaintiff seeks monetary damages.

Defendant Posner answered the complaint, including various affirmative defenses, including one based upon the expiration of the applicable statutes of limitations, and counterclaims for quantum meruit and unjust enrichment. Plaintiff served a reply with affirmative defenses.

Defendant Posner moves for summary judgment dismissing the complaint asserted against him on the ground the applicable statutes of limitations have expired and there are no triable issues of fact. Plaintiff opposes the motion, asserting, among other things, the motion is untimely made, and cross moves to compel the production of certain notes, log books and photographs.

To the extent plaintiff asserts the motion by defendant Posner is untimely, the so-ordered stipulation dated August 3, 2011 extended the time by which defendant Posner had to move for summary judgment until December 12, 2011. "A motion is made when a notice of motion is served" (Russo v Eveco Dev. Corp., 256 AD2d 566 [1998],citing CPLR 2211). According to the affidavit of service, defendant Posner made the instant motion for summary judgment by serving a copy of the notice of motion and supporting papers by mail on December 12, 2011. Under such circumstances, the motion is timely made (seeRivera v Glen Oaks Village Owners, Inc., 29 AD3d 560 [2006]).

With respect to the motion for summary judgment by defendant Posner, it is well settled that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Zuckerman v City of New York, 49 NY2d 557 [1980]). Upon a prima facie showing of entitlement, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact which would require a trial of the action (seeAlvarez v Prospect Hosp., 68 NY2d 320, [1986],supra). Thus, it is imperative that a plaintiff opposing a defendant's motion for summary judgment "assemble, lay bare and reveal its proofs, in order to show that the matters set up in [its complaint] are real and are capable of being established upon a trial" (DiSabato v Soffes, 9 AD2d 297, 301[1959). However, only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment (seeRotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]).

The claims asserted by plaintiff against defendant Posner for professional malpractice and breach of contract are governed by the three-year statute of limitations set forth in CPLR 214(6) insofar as they essentially are based upon alleged failures by defendant Posner to utilize reasonable care, and allegations of omission or negligent acts (seeMatter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 541 [2004];Napoli v Moisan Architects, 77 AD3d 895 [2010]); see alsoCity of Binghamton v Hawk Eng'g P.C., 85 AD3d 1417 [2011]). The applicable statute of limitation for non-medical malpractice claims accrues upon the completion of performance of significant (i.e. non-ministerial) duties under the contract, and the consequent termination of the parties' professional relationship, which must be viewed in light of the particular circumstances of the case (seeNapoli v Moisan Architects, 77 AD3d 895 [2010],supra; see alsoCity of Binghamton v Hawk Eng'g P.C., 85 AD3d 1417 [2011],supra;Parsons Brinckerhoff Quade & Douglas v EnergyPro Constr. Partners, 271 AD2d 233, 234 [2000]). If the action is commenced after the statute of limitations expires, a plaintiff may be able to avoid dismissal by asserting that the statute of limitations is tolled by the continuous "representation" doctrine, or at least showing there is an issue of fact as to its application (see860 Fifth Ave. Corp. v SuperstructuresEngrs. & Architects, 15 AD3d 213 [2005]). The doctrine applies when a plaintiff shows that it relied upon an uninterrupted course of services related to the particular duty breached (Id.at 214).

A cause of action based upon fraud is governed by a six-year statute of limitations, which is measured at the earliest, from the time of the fraud (seeCPLR 213 [8]).

Defendant Posner asserts the professional malpractice causes of action alleged in the complaint began to accrue when he certified the final completion of the construction project on October 10, 2003, more than three years prior to the commencement of the action, and the fraud cause of action accrued by the time of the parties' entry into the contract in 1998. In support of the motion, defendant Posner has submitted, among other things, his own affidavit, and copies of various documents. He states in his affidavit that he is a professional engineer, licensed to practice in the State of New York since 1959, and was retained by plaintiff pursuant to a contract dated May 13, 1998 to prepare the plans for Phase I of the project, perform contract administration, and make required filings with the New York City Department of Buildings (DOB). Defendant Posner opines that the plans he designed for the parapet wall met with professional standards, the work proceeded without significant issues and Phase I of the project was substantially completed by July 31, 2003. He states that on October 10, 2003, he certified the construction work was finally completed, and approved the release of final payment to TCS. Defendant Posner further states he only performed the incidental services of sending a letter dated January 12, 2004, to the New York City Department of Buildings (DOB), requesting a "letter of completion," and visiting the job site in February or March of 2004 to "deal with" a reported leak. Defendant Posner additionally states the DOB issued a letter of completion as of February 3, 2004.

Defendant Posner admits he received a letter dated June 13, 2007 from plaintiff's managing agent, advising him that defects had appeared in the work, and as a consequence, he inspected the wall on June 21, 2007, reported his findings in July 2007 to plaintiff, and prepared a "scope of work" in September 2007 for the remedial work necessary to be performed by the new contractor, and reviewed the new contractor's invoices and work until March 2008. Defendant Posner states he never billed plaintiff for any services rendered after 2003, and had no communications with plaintiff about the parapet wall from the time it was built in 2003 until he received the June 13, 2007 letter from the managing agent. In addition, defendant Posner opines the wall cracked due to the TCS's deviation from his plans by filling the drainage system with mortar. Defendant Posner asserts he had no duty to supervise TCS under the contract, and that TCS performed the defective work and covered it up within the wall, during the days when he was not present at the job site. He also opines that the defective work performed by TCS could not have been detected with reasonable diligence.

Defendant Posner has made a prima facie showing that the professional malpractice claims accrued on October 10, 2003, when he completed his non-ministerial duties under the parties' contract (seeState of New York v Lundin, 60 NY2d 987, 989 [1983],supra;Sendar Development Co., LLC v CMA Design Studio P.C., 68 AD3d 500 [2009];Parsons Brinckerhoff Quade & Douglas, Inc. v Energypro Const. Partners, 271 AD2d 233 [2000],supra), and the fraud in the inducement claim accrued at the time of the making of the contract in 1998, and therefore, are time-barred under the applicable three-year and six-year statute of limitation, respectively.

The burden shifts to plaintiff to raise a triable issue of fact as to when the causes of action accrued or to show that the case falls within an exception to the statute of limitations, including the application of the continuous representation doctrine.

Plaintiff contends defendant Posner entered into a settlement agreement with it and TCS, and that such document should be considered an acknowledgment by defendant Posner of its entitlement to damages, thus tolling, extending or restarting the applicable statutes of limitations. Contrary to this contention, the agreement, which was drafted in connection with a mediation/arbitration proceeding between plaintiff and TCS, is not binding on defendant Posner. The agreement called for Posner to pay to plaintiff the sum of $30,000.00 by October 1, 2009 in exchange for settlement of "any and all claims arising under and from the [arbitration] matter," but expressly made his obligation subject to the review and assent of his attorney. Defendant Posner, who had executed the document without benefit of counsel, made no payment to plaintiff, and more importantly, his counsel, by letter dated October 1, 2009, disavowed the claimed settlement agreement in a letter dated October 1, 2009 to counsel for plaintiff and TCS. Under such circumstances, the agreement is unenforceable, and of no effect, in relation to defendant Posner, including for the purpose of estopping defendant Posner from asserting the expiration of the applicable statutes of limitations herein.

Plaintiff asserts that defendant Posner provided design, engineering and supervisory services between August 2002 and December 2007, and therefore, its claims based upon professional malpractice are timely because they did not accrue until December 2007 when the professional relationship ended. Plaintiff contends the wall was initially constructed in 2004, and that during the period June 2007, through December 2007, defendant Posner was involved in the inspection, and supervision of the testing and reconstruction of the wall in accordance with a scope of work prepared by Posner to correct the defects. Plaintiff also contends that after the completion of the reconstruction of the wall in December 2007, defendant Posner continued to provide services to it, by providing expert testimony on its behalf as against TCS in the mediation hearing held on September 17, 2009. Plaintiff asserts it first learned as a consequence of defendant Posner's testimony, that Posner had negligently performed his duties as engineer on the project, and falsely certified the parapet wall had been properly constructed. Plaintiff argues, therefore, the claim based upon fraud is timely, having been brought within six years of the discovery of the fraud.

Plaintiff has failed to raise a triable issue of fact regarding the accrual of the causes of action for professional malpractice on October 10, 2003. The bare conclusory statement by Roz Sackoff, the president of plaintiff, in her affidavit, that defendant Posner provided continuing professional engineering services to plaintiff with regard to the parapet wall...through and including December, 2007,"(emphasis supplied) is unsubstantiated by any independent factual evidence. Plaintiff has failed to articulate any non-ministerial professional services rendered by defendant Posner between October 10, 2003, the date of the final certification, and July 2007, when defendant Posner reported his findings of the inspection of the masonry defects to plaintiff. In addition, the statement by plaintiff's counsel in his affirmation that defendant Posner was "engaged in designing and supervision of the construction of the parapet wall and its reconstruction after the wall initially failed for the period August 2004 up until and including December 2007," is not based upon personal knowledge or supported by any evidence in the record, and therefore, has no probative weight. Nor has plaintiff presented any independent evidence that the parapet wall failed in August 2004. To the extent plaintiff offers the affidavit of Evan Petkanas, P.E. in opposition to the motion, Mr. Petkanas merely states therein that "I am advised by the Plaintiff that the parapet walls were reconstructed during 2003-2004 by [TCS] as per the design documents." Such statement constitutes inadmissable hearsay on the issue of whether the wall was still under construction in 2004.

In addition, plaintiff has failed to demonstrate that the doctrine of continuous representation should be applied herein to toll the application of the statute of limitations for professional malpractice. The evidence offered by defendant Posner shows that the gap in time between the completion of defendant Posner's provision of professional services to plaintiff in relation to the initial construction of the parapet wall, and the subsequent remedial work, exceeded the three-year statute of limitations. Plaintiff has failed to show any triable issue of fact exists as to whether there were continuous or ongoing non-ministerial services rendered by defendant Posner during the period from October 21, 2003 and his reporting as to the masonry defects in July 2007. To the extent plaintiff asserts defendant Posner should be compelled to produce copies of his notes taken during his visits to the premises and his log books and photographs, and emails exchanged between the parties, it makes no claim that these items may provide evidence of non-ministerial professional services rendered by Posner during the period between October 10, 2003 and July 2007. It is also notable that plaintiff has failed to offer a copy of the relevant pages of the transcript of the deposition testimony of defendant Posner in support of its cross motion.

Plaintiff has failed to raise a triable issue of fact as to the accrual of its fraud claim premised upon defendant Posner's alleged misrepresentation regarding his abilities to perform as a professional engineer under the contract. To the extent plaintiff's complaint may be read to include a separate fraud claim based upon the allegation that defendant Posner falsely certified work which had been unauthorized or never completed, such claim is a restatement of its claim for contract damages, and likewise is barred under the professional malpractice statute of limitations. In addition, any claim that defendant Posner assigned blame for the masonry defects to TCS, to deflect plaintiff's attention away from his own negligence, does not trigger the application of the doctrine of equitable estoppel herein with respect to the application of the statute of limitations. Plaintiff cannot demonstrate detrimental reliance on any misrepresentations by defendant Posner regarding the causation of the masonry defects, since the misrepresentations are not alleged to have been made until after October 10, 2006, the date the statute of limitations for the professional malpractice claims expired.

Under such circumstances, the claims by plaintiff are time barred (seeSendar Development Co., LLC v CMA Design Studio P.C., 68 AD3d 500 [2009]), and defendant Posner is entitled to summary judgment dismissing the complaint.

Accordingly, the motion by defendant Posner is granted. The cross motion by plaintiff is denied.