Gallet Dreyer & Berkey, LLP | Short Statute of Limitations Frustrates Building Owner's Claim against Engineer for Construction Defects
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Short Statute of Limitations Frustrates Building Owner's Claim against Engineer for Construction Defects

04/07/2010 | Spring 2010 Newsletter
An owner of a six-story resi-dential condominium on the Upper West Side learned the hard way the consequences of the short statute of limitations applicable to structural engineers. Not even a clever use of an alternative theory borrowed from medical malpractice actions could salvage its claim.

In a recent case, a structural engineer was hired by a building owner to provide engineering services for the framing of five additional floors on top of the existing six-story structure and to supervise the construction. The expansion was completed in October 2002. In the spring of 2004, leaks began to appear in the building. The engineer was called back to inspect the cracking and leaks, but determined there was no structural cause for the leaks. In June 2007, with the leaks spreading, the owner sued the engineer for breach of contract and negligence.

In its recent decision, the Appellate Division, First Department, held that the claims were barred by a three year statue of limitations. From its decision, a number of basic lessons in construction law can be learned.

Some might remember that the statute of limitations for breach of contract is six years and that the statute of limitations for engineering malpractice is three years. Which applies here? The Court held that the shorter — 3-year —statute applies.

The Court stated that the clock started ticking on the statute of limitations when the engineer completed his performance of “significant” work under the contract. Here, the engineer finished his work in 2002, so the action commenced in 2007 (after more than 3 years) was untimely.

The owner argued that the doctrine of “continuous treatment” (borrowed from medical malpractice actions) should apply, extending the accrual date until at least the spring of 2004, because the engineer had visited the building again in 2004. Under this doctrine, the accrual of a statute of limitations is deemed to be “tolled” so long as the professional continues to supply services to the plaintiff. 

The Court held that while this doctrine of “continuous treatment” might apply to construction defect claims in other cases, it did not apply in this case. The engineer’s spring 2004 inspection was neither related to his original professional services, nor was it part of any ongoing services.

Reading between the lines, one gets the sense that the Court was looking to provide some closure. The lesson to be learned is that it is prudent to assert your claims at the earliest possible stage, as soon as the problems appear, rather than waiting and relying upon clever theories to save your case from dismissal.