CENTURY TOWER ASSOCIATES NY LLC v. Avcon Railing Systems, Defendant. (2023)

Order, Supreme Court, New York County (William Perry, J.), entered January 28, 2022, which denied defendant Feld, Kaminetzsky & Cohen, a Division of GEI Consultants, Inc., P.C.’s (GEI) motion to dismiss the complaint and all cross claims against it, unanimously affirmed, without costs.

In this action plaintiff alleges that defendants installed defective balcony railings at its building.  Defendant GEI, the architect of the project, is not entitled to dismissal of the complaint on documentary evidence and statute of limitations grounds.  GEI failed to eliminate issues of fact as to when the claims against it accrued.  While GEI's submissions indicate that it completed its work in December 2015, the relevant contractual and project documents demonstrate that GEI agreed to serve as architect, and required GEI to submit a certificate of payment after the work was completed.  On the record before us, it is unclear when, or if, GEI issued the certificate of payment (see New York City Sch. Constr. Auth. v. Ennead Architects LLP, 148 A.D.3d 618, 619, 49 N.Y.S.3d 462 [1st Dept. 2017]).  Moreover, GEI failed to eliminate issues of fact as to whether the continuous representation doctrine toll applies.  GEI's submissions do not conclusively establish that it did not participate in remediation efforts between 2017 and 2019 (see City of New York v. Castro–Blanco, Piscioneri & Assoc., 222 A.D.2d 226, 227, 634 N.Y.S.2d 489 [1st Dept. 1995]).  GEI therefore failed to establish untimeliness (see New York City Sch. Constr. Auth. v. Ennead Architects LLP, 148 A.D.3d at 619, 49 N.Y.S.3d 462).

GEI's motion to dismiss any cross claims is premature.  Although plaintiff's cause of action against the codefendants may ultimately be shown to lack merit or be barred by the statute of limitations, those causes of action are still pending against the codefendants as they have not moved to dismiss.  Therefore, the necessary predicate tort liability for contribution remains in this case, and the possibility that the codefendants may be found vicariously liable for GEI's failure remains, and the indemnification cross claims should also not be dismissed (see Healy v. 169 E. 69th St. Corp., 189 A.D.3d 680, 681, 139 N.Y.S.3d 163 [1st Dept. 2020];  St. Patrick's Home for Aged & Infirm v. Laticrete Intl., Inc., 264 A.D.2d 652, 658, 696 N.Y.S.2d 117 [1st Dept. 1999]).

We have considered and rejected GEI's remaining arguments.