Opinion
April 16, 1991
Appeal from the Supreme Court, New York County (Diane A. Lebedeff, J.).
Any breach of contract claim by third-party plaintiff Vector against third-party defendant Specter is barred by the six year statute of limitations (CPLR 213). A cause of action against an architect based on breach of his contract to design and oversee construction accrues on the date the final certificate of occupancy is issued. (State of New York v. Lundin, 60 N.Y.2d 987; Sears, Roebuck Co. v. Enco Assocs., 43 N.Y.2d 389.) Here, the certificate of occupancy was issued in November 1976. Thus, Vector's claims brought against Specter in 1983 are time barred. Vector's request for application of the "continuous treatment doctrine" was properly rejected. There was no evidence of an ongoing confidential professional relationship between Vector and Specter arising out of Phase I construction after 1976. (Borgia v. City of New York, 12 N.Y.2d 151.)
Furthermore, by letter dated July 13, 1977, Vector expressly and unequivocally released Howell, the contractor, from any and all future contractual obligations. This release, apparently part of the settlement of final payment between Howell and Vector, is both valid and binding. (See, Matter of Schaefer, 18 N.Y.2d 314.)
Lastly, neither Specter nor E.W. Howell Co. may be held liable in implied indemnification or implied contribution. Vector alone dictated modifications of Specter's plans, against Specter's advice, and Howell complied with those modifications. Under these circumstances, Vector cannot assert that it is only vicariously liable for wrongs actually committed by the third-party defendants or that third-party defendants should ratably share Vector's liability for the negligent and fraudulent misrepresentations alleged by plaintiffs in the main action. (Mas v. Two Bridges Assocs., 75 N.Y.2d 680, 689-690; McDermott v City of New York, 50 N.Y.2d 211.)
Concur — Sullivan, J.P., Rosenberger, Kupferman, Asch and Kassal, JJ.