Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc.

184 A.D.3d 803

126 N.Y.S.3d 498

CREATIVE RESTAURANT, INC., et al., Appellants,

v.DYCKMAN PLUMBING AND HEATING, INC., et al., Defendants,Cherico King Architect, P.C., Respondent.

2018–11110

Index No. 504716/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 19, 2019

June 24, 2020

Wong, Wong & Associates, P.C., New York, N.Y. (Efraim S. Lipschutz of counsel), for appellants.

Fishman and Tromello, Melville, N.Y. (Jonathan P. Pirog of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for architectural malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Paul Wooten, J.), dated July 25, 2018. The order granted the motion of the defendant Cherico King Architect, P.C., pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Cherico King Architect, P.C., pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against it is denied.

In March 2014, the plaintiff Creative Restaurant, Inc. (hereinafter the plaintiff), leased the first floor of a building located at 8620 4th Avenue in Brooklyn for the purpose of operating a franchise known as "Little Caesar's" (hereinafter the premises). The plaintiff hired the defendant Selling Dreams, LLC (hereinafter the contractor), to perform construction work at the premises. The contractor subsequently retained the defendant Cherico King Architect, P.C. (hereinafter the architect), pursuant to a contract dated April 23, 2014, to provide certain architectural services, including providing "schematic HVAC & Plumbing design." The plaintiff En Lin, a shareholder of Creative (hereinafter Lin, and together with Creative, the plaintiffs), was allegedly advised by the contractor and the architect that the wrong address was being used for the premises, that the correct address was 8622 4th Avenue, and that all building permits should be filed under that address. In September 2014, the defendant Dyckman Plumbing & Heating, Inc., was purportedly retained by the contractor to connect the gas line for the premises, which opened for business on September 10, 2014. In December 2014, pursuant to the terms of its contract with the contractor, the architect obtained from the New York City Department of Buildings an equipment use permit and a letter of completion for the address 8622 4th Avenue.

Two years later, in December 2016, the defendant National Grid Services Inc. (hereinafter National Grid), shut off gas services for the premises, claiming that the plaintiff was "stealing gas." According to the amended complaint, Lin notified the architect of the issue and, between December 2016 and December 2017, the architect allegedly rendered additional services in an effort to remedy the problem.

On March 7, 2018, the plaintiffs commenced this action against the architect, among others, to recover damages for architectural malpractice. The architect subsequently moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the amended complaint insofar as asserted against it on the ground that the action was time-barred by the three-year statute of limitations (see CPLR 214[6] ), and that it owed no duty of care to the plaintiffs, with whom it had no contractual relationship. The Supreme Court granted the architect's motion, in effect, based upon CPLR 3211(a)(1) and (5), finding that the doctrine of continuous representation was inapplicable to toll the statute of limitations. The plaintiffs appeal, and we reverse.

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Webster v. Sherman, 165 A.D.3d 738, 740, 85 N.Y.S.3d 457 ). Additionally, where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 683, 48 N.Y.S.3d 450 ).

To dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, "the defendant bears the initial burden of establishing, prima facie, that the time within which to sue has expired, whereupon the burden shifts to the plaintiff to raise a question of fact as to whether the limitations period has been tolled or should not apply" ( Bronstein v. Omega Constr. Group, Inc., 138 A.D.3d 906, 908, 30 N.Y.S.3d 653 ; see Regency Club at Wallkill, LLC v. Appel Design Group, P.A., 112 A.D.3d 603, 606, 976 N.Y.S.2d 164 ). "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 [internal quotation marks omitted]; see CPLR 214[6] ).

Here, in opposition to the architect's prima facie showing that this action was commenced against it more than three years after it completed the contemplated work, the plaintiffs raised a question of fact as to whether the continuous representation doctrine applied to toll the running of the limitations period (see Jeffrey Berman Architect v. Kodsi, 169 A.D.3d 1019, 1020, 92 N.Y.S.3d 909 ; Bronstein v....