The following papers numbered 1 to 22 read herein:Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3;9-11;16, 17, 18

Opposing Affidavits (Affirmations)4;12;19

Reply Affidavits (Affirmations)5;13, 14;

Memoranda of Law6, 7, 8; 15;20, 21, 22

In this action to recover damages arising from the preparation and approval of a site plan for the development of a vacant property known as 47-59 Willis Avenue in Staten Island (the property), the defendants Lauria Associates, Edward Lauria, Stanley Michael Krebushevski, and Adam Krebushevski move for an order, pursuant to CPLR 3212, granting them summary judgment dismissing the amended complaint and all cross claims insofar as asserted against them.

On Sept. 21, 2004, the plaintiff Willis Ave. Development, LLC (the purchaser) closed on the property on the condition (which survived closing of title) that "Seller shall deliver to Purchaser before closing . . . all approvals necessary for the construction of five (5) one family homes on the [property]" (Rider to Contract of Sale, ¶ 31).^[FN1] At or before closing, the non-moving defendants Block 3400 Construction Corp. and its sole owner Robert Arminante (collectively, the seller) [*2]delivered to the purchaser the site plan and related documents (collectively, the site plan) that had been approved by the New York City Department of Buildings (the DOB) on Feb. 4, 2004, under a self-certification by engineer Edward Lauria and his business entity Lauria Associates (collectively, Lauria). The seller's architect, Stanley Michael Krebushevski (Stanley), had prepared the site plan with some initial input from his father, Adam Krebushevski (Adam), who was the seller's long-term friend and consultant but was not licensed as an architect or engineer. After Stanley had completed the site plan, he had Lauria review and file it with the DOB. Lauria had made no substantive changes to the site plan before he filed it with the DOB under a self-certification program whereby the DOB does not independently examine the plans before approving them. Thereafter, the purchaser entered into a contract with the seller and acquired the property with the site plan.^[FN2] At closing of title, the seller paid an agreed-upon architect's fee to Stanley, who, in turn, split it with Lauria. It does not appear that Adam received any payment from the closing proceeds for his consulting services to the seller (see Affidavit of Seller's Closing Attorney Edward Delli Paoli, dated Sept. 10 [no year stated], listing all closing disbursements).^[FN3]

On Jan. 19, 2005 (post-closing), the DOB issued the renewal GC work permits to the purchaser. (The purchaser initially had commenced construction under the GC work permits that were issued to the seller but, as the result of the manner in which the purchaser excavated the property to install the foundation, the DOB revoked the seller's GC work permits.) On Oct. 12, 2005, following an earlier stop-work order on July 21, 2005, DOB revoked the purchaser's renewal GC work permits on the basis that the site plan — now that the DOB had independently examined it — violated the applicable zoning regulations when the DOB approved it some 20 months earlier on the basis of Lauria's self-certification. When the DOB revoked its approval of the site plan, the purchaser was unable to complete the then-ongoing construction on the property without obtaining a prior variance from the New York City Planning Commission. No variance was forthcoming by the time the purchaser commenced this action on Aug. 20, 2007.

The original complaint named only the seller and Lauria as defendants. When Lauria joined issue, he admitted in his unverified answer the truth of the purchaser's allegations (in ¶¶ 7 and 24 of its original complaint) that the seller had retained him directly to prepare the site plan and that he, in fact, prepared it. About two years later and now represented by different counsel, Lauria reversed his position when he averred (in ¶¶ 4-5 of his affidavit, dated July 7, 2009, in support of his motion for leave to amend his answer) that the seller retained Stanley (rather than him directly) to prepare the site plan and that Stanley, in turn, retained him to file it with the DOB on Stanley's behalf. In [*3]response, the purchaser sought (and was granted) leave to amend its original complaint to add Stanley and Adam as defendants. On Sept. 24, 2009, the purchaser filed a supplemental summons and amended complaint naming Stanley and Adam as additional defendants.

The gravamen of the purchaser's amended complaint is that the site plan violated the applicable zoning resolutions. The purchaser alleges, as against the moving defendants, claims sounding in negligence/professional malpractice, negligent misrepresentation, and fraudulent misrepresentation based upon Lauria's self-certification, and Stanley/Adam's preparation, of the site plan. Each moving defendant interposed an answer to the amended complaint, asserting the statute of limitations as an affirmative defense. Stanley (as well as the seller) asserted cross claims against the other defendants. The instant motions for summary judgment, all timely served after the completion of discovery and the filing of a note of issue, are now before the Court.

The purchaser's negligence or malpractice claims against the moving defendants are time-barred. A cause of action for professional malpractice against an engineer or architect, such as Lauria and Stanley, is governed by a three-year statute of limitations (see CPLR 214 [6]). The statute of limitations begins to run "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court" (Hahn Auto. Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 770 [2012]). Contrary to the purchaser's contention, the accrual dates for causes of action based on negligence and negligent misrepresentation are not the same. "A cause of action based on negligent misrepresentation accrues on the date of the alleged misrepresentation which is relied upon by the plaintiff" (Fandy Corp. v Lung-Fong Chen, 262 AD2d 352, 353 [2d Dept 1999] [emphasis added], citing IFD Constr. Corp. v Corddry Carpenter Dietz & Zack, 253 AD2d 89 [1st Dept 1999]).^[FN4] At this stage of the discussion, however, the purchaser's separately pleaded claim of negligent misrepresentation is irrelevant.

Here, Lauria has established, prima facie, that the purchaser's negligence/malpractice claim against him accrued more than three years prior to commencement of this action on Aug. 20, 2007. Specifically, the negligence/malpractice claim against Lauria accrued, not on Sept. 21, 2004, the date of closing of title, but on Feb. 4, 2004, when the DOB approved the site plan and Lauria completed the performance of his significant (i.e., non-ministerial) duties under his subcontract with Stanley (see Vlahakis v Belcom Dev., LLC, 86 AD3d 567, 567-568 [2d Dept 2011]).^[FN5] [*4]

In opposition, the purchaser has failed to raise a triable issue of material fact. The purchaser points out that Lauria (1) charged the purchaser $200 for making a copy of the site plan on Nov. 29, 2004, (2) provided an expediter from his officer to assist the purchaser in obtaining the renewal GC work permits on Jan. 19, 2005, and (3) filed on the seller's behalf an "Additional Information" application on Oct. 21, 2005, to reflect the change in ownership arising from the earlier closing of title. The purchaser appears to rely on the doctrine of continuous representation which tolls the running of the statute of limitations on the negligence/malpractice claim until the ongoing representation is completed. However, the doctrine has no application to a continuing general relationship with a professional involving only routine contact for miscellaneous representation, unrelated to the matter upon which the allegations of negligence or malpractice are predicated (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). Here, Lauria's isolated, separate acts do not toll the statute of limitations under the continuous representation doctrine (see Chicago Title Ins. Co. v Mazula, 47 AD3d 999, 1000-1001 [3d Dept 2008]). Significantly, the purchaser hired its own architect (nonparty Gaspare Rosario Santoro, P.E.), before closing of title, to file a "Start of Construction Affidavit" with the Department of Housing Preservation and Development. Thus, under the circumstances of this case, the purchaser's negligence/malpractice claim against Lauria accrued upon the completion of his performance more than three years before the inception of this action.

Likewise, Stanley has made a prima facie showing that he completed his contractual obligations to the seller by no later than Feb. 4, 2004, when the DOB approved the site plan. Assuming, without deciding, that the purchaser's negligence claim against Stanley related back to the date of the filing of the original complaint on Aug. 20, 2007, such claim would still be time-barred. In opposition, the purchaser has failed to raise a triable issue of material fact. Indeed, the deposition testimony of the purchaser's principals indicates that they never met or communicated with Stanley either before or after closing of title.^[FN6] Accordingly, the purchaser's negligence/malpractice claim against Stanley is time-barred.

With respect to Adam who is not an engineer or architect, the purchaser's negligence claim against him is governed by the three-year statute of limitations that is generally applicable to claims arising from an injury to persons or property (see CPLR 214 [4], [5]). The statute of limitations begins to run "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court" (Hahn Auto. Warehouse, Inc. v American Zurich Ins. Co., 18 NY3d 765, 770 [2012]). Here, the purchaser's claim against Adam accrued, at the latest, when closing of title occurred on Sept. 21, 2004. Because the purchaser did not add Adam as a defendant until about five years later on Sept. 24, 2009, its negligence claim against him is untimely.

The doctrine of equitable estoppel is unavailable to toll the statute of limitations as to Adam. Two requirements must be satisfied to permit the purchaser to invoke this doctrine. First, Adam's "affirmative wrongdoing [must have] contributed to the delay between accrual of the cause of action and commencement of the legal proceeding" (Clark v Ravikumar, 90 AD3d 971, 972 [2d Dept [*5]2011]). Second, the purchaser "must demonstrate reasonable reliance on [Adam's] misrepresentations, and the [purchaser's] due diligence in ascertaining the facts" (id.). Whatever bad acts Adam may have committed, the record does not allow the conclusion that the purchaser reasonably relied on any of Adam's alleged misrepresentations in delaying his joinder in this action. The purchaser met with Adam in person within 18 months following closing of title and was under a duty to inquire and ascertain all of the relevant facts regarding Adam's role in the preparation of the site plan (see Clark, 90 AD3d at 972; Gleason v Spota, 194 AD2d 764, 765 [2d Dept 1993]).^[FN7] Accordingly, the purchaser's negligence claim against Adam is time-barred.

Although timely (see Fandy Corp. v Lung-Fong Chen, 262 AD2d 352, 353 [2d Dept 1999]), the purchaser's negligent misrepresentation claims are dismissed on the strength of the privity requirement. A plaintiff in an action for negligent misrepresentation must show a relationship with the defendants that is so close as to approach that of privity (see Sykes v RFD Third Ave. 1 Assocs., LLC, 15 NY3d 370, 372 [2010]). Three requirements must be satisfied before the necessary relationship will be found to exist:

"(1) the [defendants] must have been aware that the [misrepresentations] were to be used for a particular purpose or purposes; (2) in the furtherance of which a known party or parties was intended to rely; and (3) there must have been some conduct on the part of the [defendants] linking them to that party or parties, which evinces the [defendants'] understanding of that party or parties' reliance."

The second Credit Alliance prong is not satisfied in this case. The record fails to bear out the purchaser's claim that, in preparing the site plan and obtaining the DOB approval before closing of title, the moving defendants knew of the purchaser as the specific non-privy party who would be relying on the site plan. The purchaser and the seller did not even have a contract in place when the seller retained Stanley to prepare the site plan and when Stanley, in turn, retained Lauria to finalize and file the site plan with the DOB. The deposition testimony, as reproduced in the margin,^[FN8] indicates that, before closing of title, the purchaser and the moving defendants had absolutely no [*6]contact with each other and that the moving defendants had no knowledge of the identity of the specific purchaser (see Metral v Horn, 213 AD2d 524, 526 [2d Dept 1995] cf. John Blair Communications v Reliance Cap. Group, 157 AD2d 490, 492 [1st Dept 1990] [privity was found where auditor was specifically advised of the identity of the prospective purchaser]).^[FN9] Thus, the purchaser was part of an indeterminate class of persons who may (or may not) have relied on the moving defendants' alleged misrepresentations in the site plan in acquiring the property from the seller (see Plaisir v Royal Home Sales, 81 AD3d 799, 801 [2d Dept 2011] Ford v Sivilli, 2 AD3d 773, 774-775 [2d Dept 2003] see also Bri-Den Constr. Co., Inc. v Kapell & Kostow Architects, P.C., 56 AD3d 355 [1st Dept 2008], lv denied 12 NY3d 703 [2009]).^[FN10]

The dismissal of the seller's cross claims against Stanley and Lauria is premature. Whether Stanley, Lauria, or both of them may be held liable to the seller for contribution, indemnification, breach of contract, malpractice, or negligence cannot be determined on the present record (see Mas v Two Bridges Assocs., 75 NY2d 680, 687-689 [1990] 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 82-83 [1st Dept 1999]).

Similarly, the dismissal of Stanley's cross claims against Lauria is premature. Whether Lauria, as a licensed engineer, should have spotted the zoning violations in the site plan and so alerted Stanley before filing the site plan cannot be determined on this record.

In contrast, the dismissal of Stanley's and the seller's cross claims against Adam is appropriate. Adam has demonstrated, prima facie, that whereas he had prepared an initial sketch of the site plan, Stanley subsequently rejected that sketch and, in lieu thereof, created a different site plan.^[FN15] In response, Stanley and the seller implicitly agree to the dismissal of their cross claims against Adam. Stanley, in his initial and reply papers, has ignored his cross claim against Adam altogether, whereas the seller has filed no response to Adam's motion.

The joint motion of Lauria Associates and Edward Lauria for summary judgment is granted to the extent that the purchaser's negligence/malpractice, negligent misrepresentation, and fraudulent misrepresentation claims (third, fourth, fifth, and tenth causes of action) insofar as asserted against them are dismissed, and is otherwise denied (seq. No. 12). The seller's and Stanley's cross claims against Lauria Associates and Edward Lauria remain unaffected by this decision and order.

The motion of Stanley Michael Krebushevski for summary judgment is granted to the extent that the purchaser's negligence/malpractice, negligent misrepresentation, and fraudulent misrepresentation claims (sixth, seventh, and tenth causes of action) insofar as asserted against him are dismissed, and the remainder of his motion is denied (seq. No. 10). The seller's cross claims [*8]against Stanley remain unaffected by this decision and order.

The motion of Adam Krebushevski for summary judgment is granted in its entirety, and the purchaser's negligence, negligent misrepresentation, and fraudulent misrepresentation claims (eighth, ninth, and tenth causes of action) insofar as asserted against him are dismissed without costs or disbursements (seq. No. 11). Also dismissed are Stanley's and the seller's cross claims against Adam.

The action is severed and continued against the remaining defendants, Block 3400 Construction Corp. and Robert Arminante, on the breach of contract and fraudulent misrepresentation claims (first, second, and tenth causes of action), and against Lauria Associates, Edward Lauria, and Stanley Michael Krebushevski on the cross claims. The caption is amended to delete Adam Krebushevski.

The remaining parties are reminded of their next scheduled appearance in Commercial Part Trial 2 on Feb. 20, 2014.

This constitutes the decision, order, and judgment of the Court.

E N T E R,

J. S. C.