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Court Liberally Applies Continuous Representation Doctrine (NY)

January 10, 2020

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<p style="text-align: justify;">In New York, an action to recover damages for malpractice, other than medical, dental or podiatric malpractice must be commenced within three years of its accrual. <em>R.M. Kliment &amp; Frances Halsband, Architect v. McKinsey &amp; Co., Inc.,</em> 3 N.Y.3d 538 (2004).  The Court of Appeals has recognized that the continuous representation doctrine, a principle that the limitations period for these actions is tolled if the professional continues the representation that is related to the negligent act or omission, can toll the statute of limitations only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim. <em>McCoy v. Feinman,</em> 99 N.Y.2d 295 (2002). However, New York Courts have held that in seeking to assert a continuous representation tolling, the plaintiff's pleading must assert more than simply an extended general relationship between the professional and client. <em>West Village Associates Limited Partnership v. Balber Pickard</em>, 49 A.D.3d 270 (1st Dept. 2008).</p>
<p style="text-align: justify;">Most recently in <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/01/Mutual-Redevelopment-Houses-Inc.-v.-Skyline-Engineering-L.L.C..pdf">Mutual Redevelopment Houses, Inc. v. Skyline Engineering, L.L.C.</a>,</em> the Appellate Division, First Department, addressed whether the continuous representation doctrine could apply to toll the statute of limitations in a breach of contract claim where an engineering firm was retained to rectify their own alleged defect that arose in a prior agreement. Plaintiff commenced the action in 2016 alleging that it retained Skyline, an engineering firm, to perform special inspection services for Phase I of an HVAC installation project, and that Skyline negligently performed those services and breached the contract.</p>
<p style="text-align: justify;">In support of its motion for summary judgment, Skyline demonstrated that it completed Phase I work under the contract in 2012 and that it was serving in a professional capacity as an engineering firm when it performed those services, so that the three-year limitations period applied. However, Plaintiff asserted that the action was not time barred because the continuous representation doctrine is applicable and tolled the accrual of limitations until 2014. Moreover, the Plaintiff submitted evidence showing Skyline provided special and progress inspection and testing services for Remediation of Phase I of the project, pursuant to a separate agreement.</p>
<p style="text-align: justify;">The court recognized that although the work was completed under a separate agreement, Skyline rendered these services to correct the engineering and construction defects that it failed to identify during its Phase 1 inspection in 2012. Although the Court did consider plaintiffs action as timely and acknowledged that Skyline continued to provide services in connection with Phase I in 2014, it ultimately granted Skyline’s summary judgment motion, and dismissed the complaint as duplicative of the negligence claims, since it was based on the same facts and alleges the same damages.</p>
<p style="text-align: justify;">It is imperative for engineers and other design professionals to recognize where a statute of limitations defense may fall short when faced against the artillery of the continued representation doctrine. In order to overcome such procedural obstacles, engineers must be sure to establish milestones within their contracts, so that all the parties understand what specific event constitutes the project’s completion. Implementing such contractual mechanisms will not only avoid ambiguities in future negotiations, but help bolster procedural defenses in litigation.</p>
<p style="text-align: justify;"><span>Thanks to James Papadakis for his contribution to this post.  Please email <a href="mailto:mgauvin@wcmlaw.com">Michael Gauvin </a></span><span>with any questions.</span></p>

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