Opinion
10533 Index 400227/11
12-10-2019
The CITY OF NEW YORK, Plaintiff–Respondent, v. GEORGE G. SHARP, INC., Defendant–Appellant.
Rubin, Fiorella & Friedman LLP, New York (James E. Mercante of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondent.
Rubin, Fiorella & Friedman LLP, New York (James E. Mercante of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondent.
Friedman, J.P., Kapnick, Kern, Oing, JJ.
Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered August 6, 2018, which denied defendant's motion to dismiss the complaint alleging professional malpractice as untimely, unanimously affirmed, without costs.
Defendant failed to meet its prima facie burden of establishing that plaintiff City of New York's time in which to sue has expired (see Benn v. Benn , 82 A.D.3d 548, 918 N.Y.S.2d 465 [1st Dept. 2011] ). "A cause of action to recover damages against an architect for professional malpractice is governed by a three-year statute of limitations, which accrues upon termination of the professional relationship—that is, when it completes its performance of significant (i.e. non-ministerial) duties under the parties' contract" ( New York City Sch. Constr. Auth. v. Ennead Architects LLP , 148 A.D.3d 618, 618, 49 N.Y.S.3d 462 [1st Dept. 2017] [internal quotation marks omitted]; CPLR 214[6] ). Here, the City has sufficiently alleged that defendant completed its performance under the contract, and the parties' professional relationship terminated, on or about February 2, 2010, when defendant allegedly delivered its completed as-built designs. Because the City commenced this suit a year later, on or about January 28, 2011, its malpractice claim was timely ( CPLR 214[6] ).
The City's allegations, that defendant departed from accepted practice and failed to perform services in accordance with professional standards, sound in negligence. However, even if couched in contract, the City's claim still would be timely under CPLR 214(6) (see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.] , 3 N.Y.3d 538, 542, 788 N.Y.S.2d 648, 821 N.E.2d 952 [2004] ; Risk Control Assoc. Ins. Group v. Maloof, Lebowitz, Connahan & Oleske, P.C. , 151 A.D.3d 527, 528, 57 N.Y.S.3d 139 [1st Dept. 2017], lv dismissed 32 N.Y.3d 1196, 95 N.Y.S.3d 149, 119 N.E.3d 789 [2019] ; compare Dormitory Auth. of the State of N.Y. v. Samson Constr. Co. , 30 N.Y.3d 704, 70 N.Y.S.3d 893, 94 N.E.3d 456 [2018] ). We have considered defendant's remaining arguments and find them unavailing.