Microsoft Word - STATUTE OF LIMITATIONS.DOCX

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Statute of Limitations for Design Professionals

in New York: 3 Years, 6 Years, 10 Years, or

Something Else?

By Steven R. Goldstein, Esq.

When an action has been commenced, or is threatened to be commenced,

against a design professional counsel representing the design professional must

promptly evaluate which defenses apply to such claims. Of the many defenses

available to design professionals, asserting the Statute of Limitations defense can result

in a complete dismissal of the lawsuit against the design professional. The Statute of

Limitations, which is the time within which a party must commence an action against

another party, is defined by statute.

Pursuant to the New York Civil Practice Law and Rules, in order to maintain an

action for engineering or architectural malpractice, and/or negligence against a design

professional, the action must be commenced within three years. A claim for negligence

or malpractice against an architect or engineer, arising out of the alleged defective

design or construction of a building, accrues for the purpose of Statute of Limitations

upon the completion of performance of the design professional’s services at the project.

New York Courts look to the date of completion of performance to determine when the

cause of action accrued, no matter whether the claim is characterized as one for

negligence, breach of contract, or fraud. The New York Court of Appeals has defined

completion of performance as completion of the actual physical work, even though

incidental matters may remain. This portion of the statute applies when the design

professional has a contractual relationship with the party claiming damages (privity of

contract). However, when there is no privity of contract, for example when a person

walking by a construction site trips and falls and sustains personal injuries or property

damage, that party has three years to commence the action from the date when the

injury occurs.

Notably, while a design professional may claim that their services were

completed on a particular date, should the design professional be requested to return to

the project to assist in correcting an issue for which the design professional had

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 Steven R. Goldstein, Esq. isthe Principalof GoldsteinLaw, PC, with officesin GardenCity, NY andNew York

City.GLPCprovidesafullrangeoflegalservicestodesignprofessionalsfromriskmanagementthroughtrial.

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originally been retained, the "Continuous Treatment" doctrine may be applied to extend

the Statute of Limitations. Specifically, in the event the initial Statute of Limitations has

not yet expired and a design professional returns on a number of dates to address an

issue for which the design professional was retained, the Statute of Limitations accrual

date is extended until the date that the design professional's further association with the

party on that issue is completed.

In addition to the three year Statute of Limitations applicable to design

professionals in New York, a breach of contract claim is often also asserted against the

design professional. The breach of contract Statute of Limitations is six years from the

date of the alleged breach. It is important for the design professional and their counsel

to carefully evaluate the elements supporting the alleged breach of contract claim, as

the courts have often held that the claim is actually one sounding in negligence and

therefore subject to the three year limitations, rather than a breach of contract subject to

a six year Statute of Limitations. In this regard, once the design professional performs

a service, which is claimed by others not to have been properly performed and resulted

in damages, such claims are often viewed by courts as being associated with

negligence, and not breach of contract.

Another issue that is often addressed in evaluating Statute of Limitations is the

Statute of Repose. A Statute of Repose is a statute that cuts off certain legal rights if

they are not acted on by a particular deadline. New York does not have a specific

Statute of Repose with respect to claims asserted against design professionals.

Notwithstanding, the New York legislature modified the existing law by providing

additional elements which must be satisfied should a party seek to pursue a claim

against a design professional more than ten years after the services were performed by

the design professional. To proceed in this manner, the claimant must file a Notice of

Claim prior to the service of a Summons and Complaint. Should the claimant properly

proceed with a Notice of Claim, 90 days thereafter they may pursue a claim against the

design professional. Under such circumstances, in response, the design professional

often proceeds with a motion for summary judgment arguing that there is no substantial

basis in fact and law to establish that the conduct of the design professional was

negligent, and that such conduct was the proximate cause of the claimed damages.

Under the statute, the burden rests on the claimant to establish a substantial basis for

advancing such a claim. This is a rather high threshold and as such, it is a rarity when

such claims are permitted to proceed so far after the design professional's services are

completed at a project.

CONCLUSION

In evaluating the viability of a Statute of Limitations defense, it is incumbent upon

the design professional's counsel to promptly obtain and review all relevant project

records in the design professional's possession. Proceeding in this manner should

provide counsel with information that either supports or refutes the Statute of Limitations

defense. This necessary step early on often results in the design professional obtaining

a voluntary discontinuance or, if necessary, dismissal of the claims against the design

professional. With respect to the Statute of Repose, while it exists and is an avenue for

a claimant to potentially pursue a claim against a design professional, it is one that is

not often pursued based, in part, on the difficult threshold of establishing a substantial

basis for advancing the claim.

Thus, whether or not a viable claim may exist against a design professional

based on the design professional's actions or inactions at a project, immediate and

proper evaluation of the applicable Statute of Limitations may result in prompt dismissal

of such action and, in turn, the inability of the claimant to recover damages against the

design professional for such claims.

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This article is for general informational purposes only, does not create an attorney-client

relationship between the reader and author, and is not meant to provide legal advice.

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