Opinion
82098 QTS 2007.
Decided April 3, 2009.
John A. Pannone Esq., Attorney for Plaintiff.
James G. Preston, Esq., Attorney for Defendant.
Defendant moves to vacate the notice of inquest, for leave to interpose an answer, or for summary judgment dismissing plaintiff's complaint. Defendant also seeks $2,500 in attorney's fees.
Plaintiff entered into a contract of sale agreement with Ms. Irene Idora Clark (hereinafter "Ms. Clark") for the purchase of real property located at 69 Decatur Street, Brooklyn, New York. Plaintiff proceeded with the closing of title based on a rider to the contract of sale that the parties agreed would survive the delivery of the deed. Ms. Clarke and plaintiff signed the rider on August 31, 1993.
The rider indicates that $8,000 would be held in escrow with Ms. Clarke's attorney to cover the undertaking and that the seller would retain the defendant, a licensed engineer, to remove building department violations and to procure a certificate of occupancy for the premises based on the defendant's June 15, 1993 and August 4, 1993 proposals. The June 15, 1993 proposal specifically lays out the scope of work and payment schedule [total cost of project $5,500, $1,500 initial payment, $3,500 after release of the file by the Buildings Department for inspections, and the balance of $1,000 due upon issuance of the certificate of occupancy]. The August 4, 1993 proposal changed the initial payment to $3,000 and added $2,500 to the total project cost to cover expenses for repairs and the removal of violations. Defendant received a down payment of $3,000 but never completed the terms of the agreement and never received the balance of the remaining $5,000. The attorney designated to hold funds in escrow is now deceased.
Asserting her status as an intended third party beneficiary to the agreement between defendant and Ms. Clarke, plaintiff commenced this action on June 26, 2007. Plaintiff contends that defendant breached the contract by failing to file approved plans or procure a valid certificate of occupancy for the subject premises. Months after the time for the defendant to answer elapsed, plaintiff served the defendant with a notice of inquest in April 2008. Both parties appeared in the inquest part on July 28, 2008. The court at that time granted defendant's application for leave to retain counsel. After retaining counsel, defendant filed a verified answer on October 16, 2008 and, on February 9, 2009 filed the instant motion.
Before addressing the merits of the motion, the court notes that the defendant's notice of motion contained an error or defect where the defendant's attorney listed one digit in the court's address incorrectly and manually changed the same. Defendant also changed the date of service in his affirmation to reflect the date that the newly amended notice of claim would be served on plaintiff before filing its papers with the clerk of the court There being no indication that these changes prejudiced or were objected to by the plaintiff, the court exercises its discretion to proceed in the interests of justice and expediency ( see CPLR 2001; Russo v Besidine, 93 AD2d 790).
The two issues before the court are (1) whether the plaintiff has established the requisite criteria to vacate the inquest and (2) whether the alleged contact(s) between the parties were sufficient to invoke the continuous representation doctrine to toll the statute of limitations.
The proponent of a motion for relief from a judgment or order must demonstrate a reasonable excuse for the default and the existence of a meritorious defense (CPLR 5015 [a] [1]; Mount Sinai Hosp. of Queens v Hertz Corp ., 3 AD3d 523, 524 [2d Dept 2004]; Saltzman v Knockout Chemical Equipment Co., Inc., 108 AD2d 908 [2d Dept 1985]; Shaw v Shaw, 97 AD2d 403 [2d Dept 1983]). According to the defendant's affidavit, he was unable to appear due to personal reasons, including the death of his wife and the obligation he had to care for his physically incapacitated and chronically ill son. The defendant also asserts seven defenses including statute of limitations, failure to state a cause of action and failure to serve two necessary parties. The court finds that the defendant's delay is excusable and that the defendant offers a meritorious defense. Thus, the inquest is vacated.
With respect to defendant's request for summary judgment dismissing the action, the moving party in a motion for summary judgment must offer evidentiary proof in admissible form to establish entitlement to judgment as a matter of law ( see Bush v St. Clare's Hospital, 82 NY2d 738; Alvarez v Prospect Heights Hospital, 68 NY2d 320; Winegrad v New York University Medical Center, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). To rebut the movant's claims, the opposing party must set forth sufficient evidence in admissible form to demonstrate the existence of a genuine triable issue of fact. Winegrad v New York University Medical Center, supra; Zuckerman v City of New York, supra.
In support of the motion for summary judgment, defendant contends that plaintiff's complaint should be dismissed because the claim is time-barred. Defendant argues that he began working after receiving the down payment but, after two years of plaintiff's failure to cooperate and provide the necessary papers, he believed that the project had been abandoned. Defendant maintains that he never agreed to any amendment, extension, modification, renewal or continuation of the original contract. He admits receiving the Certificate of No Harassment in August of 2001 but contends that it was only partially completed and that he filed the document with the City merely as a courtesy to plaintiff. Upon its rejection, the defendant contends that he never received additional documentation or communication from plaintiff or plaintiff's attorney until initiation of this lawsuit in 2007.
In opposing the motion, plaintiff contends that the statute of limitations period is tolled under the continuous representation theory and, therefore, defendant's motion for summary judgment should be denied. According to plaintiff's affidavit, the defendant did not contact her for a period of nearly seven years from the date of the closing in August 1993. Plaintiff stated that the defendant contacted him on July 12, 2001 requesting the Certificate of No Harassment form and that his attorney mailed the same to the defendant in August 2001. Plaintiff also contends that his attorney mailed a certified copy of the deed to the defendant in 2004. Plaintiff argues that these contacts are sufficient to invoke the continuous representation doctrine.
The statute of limitations for actions against licensed professionals for non-medical malpractice claims is three years regardless of whether the underlying theory is based in contract or tort (CPLR 214; Chase Scientific Research v NIA Group, 96 NY2d 20; Tembrands, Inc. v Lockwood Greene Engineers, Inc., 178 AD2d 406 [2d Dept 1991]). Engineers, lawyers, architects, and accountants are considered "professional" within the ambit of CPLR 214(6) ( see Chase Scientific Research v NIA Group, supra; Castle Oil Corp. v Thompson Pension Employee Plans, Inc., 299 AD2d 513, 514 [2d Dept 2002]). The continuous treatment rule which was first applied in medical malpractice cases ( see Borgia v City of New York, 12 NY2d 151) extends to all non-medical malpractice actions against such professionals, and it tolls the running of the statute of limitations during the representation period( see Glamm v Allen, 57 NY2d 87, 94; Castle Oil Corp., 299 AD2d at 514-515). The doctrine may be successfully invoked when the representation is continuous and the representation relates to the specific facts and circumstances giving rise to the cause of action. ( see Glamm v Alien, 57 NY2d 87; Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505 [2d Dept 1990]; see also Sherry v Queens Kidney Center, 117 AD2d 663, 664-665 [2d Dept 1986]). That is, continuous representation requires an ongoing, continuous relationship pertaining to performance of the same or related services. However, a plaintiff's failure to pursue a recommended course of action or sporadic, intermittent contact militates against application of the doctrine, and representation cannot be continuous if the intervals between representation exceed the limitations period ( see Curcio v Ippolito, 97 AD2d 497, affd 63 NY2d 967; Glamm v Alien, supra, Luk Lamellen U. Kupplungbau GmbH v Lerner, supra; Sherry v Queens Kidney Center, supra).
In the case at bar, the rider is silent as to when completion should occur; however, fourteen years have elapsed between the date the contract was signed and commencement of this action in 2007. A reasonable time is implied when parties to a contract fail to specify a completion date. ( Teramo Co. Inc. v O'Brien-Sheipe Funeral Home Inc., 283 AD2d 635 [2d Dept 2001]; Young v Whitney, 111 AD2d 1013 [3d Dept 1985]). What constitutes a reasonable time for performance depends on the facts and circumstances of the particular case ( see Savasta v 470 Newport Associates, 82 NY2d 763). Some of the factors to be considered are the subject matter of the contract, the situation of the parties, their intention, what they contemplated at the time the contract was made, and the circumstances surrounding performance ( see Lake Steel Erection v Egan, 44 NY2d 848; Young v Whitney, supra). In this case, reasonableness is based on the amount of violations to be cured and the time it would ordinarily take to file the paperwork required for a certificate of occupancy.
Based on the arguments and evidence submitted, the court finds that the breach first occurred between the defendant and the original contracting party, Ms. Clarke, probably months or, at the latest, one year after the date of closing on August 31, 1993. Plaintiff was free to assert his rights under the agreement immediately following the closing. Under these circumstances, the defendant's time to perform was well overdue and the statute of limitations had run by the time the parties reinitiated contact in 2001. Even assuming arguendo that defendant's mailing of the Certificate of No Harassment to the City on plaintiff's behalf, invoked the continuing representation doctrine, three years has elapsed before the next contact. The next contact would have occurred in 2004 when plaintiff's counsel allegedly mailed the deed to the defendant; however, the defendant denies ever receiving the deed and plaintiff has tendered no proof of mailing.
Even viewing all of the evidence in a light most favorable to plaintiff, the court cannot find the existence of any continuous representation. The continuous representation rule requires continuity. The contacts between the parties appear to be sporadic, intermittent at best and non-existent at worse and the intervals between any representation exceeds the limitations period. Thus, the continuous representation exception is inapplicable and plaintiff's action is barred by the statute of limitations. All other issues are without merit.
Accordingly, the defendant's motion to vacate the inquest and for summary judgment dismissing the complaint is granted. There are no genuine triable issues of fact requiring a trial.
This constitutes the decision and order of the court.