Supreme Court Justice Anil C. Singh, sitting in New York County's Commercial Division, held that the failure of an architect to secure a permanent certificate of occupancy for its client's building did not toll the statute of limitations for a professional malpractice claim under the continuous representation doctrine. In 2015, the Sponsor of a condominium building commenced an action for professional malpractice against the architect. Upon receipt of the lawsuit, 15 Broad Street, LLC v. Cerami Associates, Inc., et al., counsel for the architect filed a motion to dismiss on the ground that it had completed substantially all of the work under contract in 2006. Accordingly, the time to bring such an action lapsed three years later in 2009.
The Sponsor opposed the Architect's motion to dismiss on the ground that the contractual relationship has not yet lapsed – and, therefore, the time to initiate a lawsuit for professional malpractice has not begun to run – because the Architect's contract required it to assist the Sponsor in obtaining a permanent certificate of occupancy from the New York City Department of Buildings, which, as of the time the suit was commenced, still had not been done. The Sponsor relied on a legal theory known as the "Continuous Representation Doctrine" in support of its argument that the statue of limitations had not expired.
Justice Singh, in ruling against the Sponsor, pointed out that one of the requirements of the Continuous Representation Doctrine – uninterrupted service – was not factually supported by the record. Specifically, Justice Singh pointed to a nine-year gap between the last invoices rendered to the Sponsor by the architect in 2006 and the commencement of the lawsuit in 2015 as evidence that the relationship was not on-going even though the architect still had not fulfilled the contractual obligation to secure the Certificate of Occupancy. This ruling was a bit of a surprise because, technically, the architect had yet to complete its contractual work for the sponsor and the relationship, technically, has not ended. Nevertheless, Justice Singh found a sufficient break in the services to apply the statute of limitations in favor of the design professional.
Following the issuance of Justice Singh's ruling, counsel for the Sponsor filed a Notice of Appeal of the portion of Justice Singh's ruling that dismissed its Professional Malpractice claim against the Architect. It will be interesting to see whether New York's intermediate appellate court - the Appellate Division of the Supreme Court, First Judicial Department – upholds Justice Singh's interpretation of the continuous representation doctrine.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.