Opinion
November 4, 1983
Appeal from the Supreme Court, Niagara County, Ostrowski, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Moule and Schnepp, JJ.
Order unanimously affirmed, with costs. Memorandum: We agree with Special Term that plaintiff's claims based on the negligent performance of the heating, ventilating and air-conditioning contract are governed by the six-year Statute of Limitations (CPLR 213, subd 2) (see Sears, Roebuck Co. v Enco Assoc., 43 N.Y.2d 389) and accrued no later than the date of final payment, March 11, 1975. Since the action was not commenced until May of 1982, the contract cause of action is time barred. Any claims based on negligence and not arising out of the contract accrued at the time the alleged injuries were sustained (see Victorson v Bock Laundry Mach. Co., 37 N.Y.2d 395, 403, 404) (i.e., when the work was done prior to March 11, 1975) not in 1981 when the heating, ventilating and air-conditioning systems were uncovered and the defective and negligently performed work was first discovered. We reject plaintiff's argument that reasons of fairness and public policy compel the adoption of the "discovery rule" in negligence cases against contractors (see Matter of Steinhardt v Johns-Manville Corp., 54 N.Y.2d 1008, app dsmd 456 U.S. 967). We do not read Queensbury Union Free School Dist. v Walter Corp. ( 82 A.D.2d 204, app dsmd 55 N.Y.2d 745) as requiring a different result.