Hawkins, J.
This appeal is from a judgment in favor of the defendant upon the trial court’s denial of plaintiffs motion, upon oral argument, after a jury had been selected, to amend the complaint so as to plead a cause of action for breach of contract and to strike the defendant’s affirmative defense that the action is time-barred by the three-year Statute of Limitations (CPLR 214) and upon granting the defendant’s cross motion to dismiss the action as time-barred.
On December 9, 1963 the parties entered into a written agreement whereby the plaintiff engaged the defendant, an architect,vto prepare plans for the design and construction of a one-family house. The defendant rendered such professional [439]*439services during the following two years. The house was completed in 1965. The certificate of occupancy was issued on May 27, 1965. Plaintiff began occupancy on May 3, 1965. The last items of work, the black-topping of the driveway and the installation of a floor slab in the garage, were completed in December of that year. This action was commenced in December, 1969.
Inter alia, the contract, the standard American Institute of Architects (A.I.A.) form, provided that: (1) the defendant would (a) prepare studies, drawings and specifications; (b) confer with persons desiring to enter into contracts for work on the project; (c) issue certificates for payments, (d) "supervise the work being done * * * or [the] furnishing [of] materials”; and (e) guard against noncompliance by any contractor, "but the architect does not thereby guarantee the performance by any contractor or other person of his, its or their contracts”; and (2) the defendant’s "supervision is to be distinguished from the continuous personal superintendence which can be obtained by the employment of a clerk-of-the-works. However, the architect specifically agrees and covenants that he will be at the premises at least three times a week to carry out his duties of supervision.” The stated fee was 10% of the cost of the project. It was to be paid at listed amounts and percentages at various stages of construction, with the last part to be paid at the time of the issuance of the certificate of occupancy.
The plaintiff, a lay person, prepared her own complaint and did not engage counsel until some four months before the trial. She is acting on her own behalf on the instant appeal. In the colloquy upon the motion at Trial Term, the Justice presiding commended the plaintiff’s efforts in drawing the pleadings, but added that if he were requested to reform the complaint, it would, nevertheless, emerge "substantively” in "malpractice”. The plaintiff’s then attorney, in support of the motion, urged that "the complaint has verbiage sounding in tort and in contract.” He further argued that the plaintiff "copied the verbiage from form books, which she did not know the value of, and what to do” and that, the architect had not guaranteed a result as in the instances of a doctor effecting "a cure” or a lawyer guaranteeing that he "will win a case for the party.” The specific guarantee alleged is that the house would be completed no later than August 1,1964.
This court has also considered whether the three- or six-[440]*440year Statute of Limitations is applicable where an owner, aggrieved by the architect’s services, seeks redress (see Sears, Roebuck & Co. v Enco Assoc., 54 AD2d 13). Until the advent of Matter of Paver & Wildfoerster (Catholic High School Assn.) (38 NY2d 669) in February, 1976, the cases held, with some measure of uniformity, that absent a "special agreement” as sometimes is found in a physician-patient relationship involving a guaranteed cure, or in an owner-architect contract containing a guarantee of continuous and more-than-routine supervisory services, the three-year period applied. No matter the precise terminology of the plaint, or the endeavors to anchor the action to contract rather than tort, the "reality” and the "essence” are in tort and not in contract (see Carr v Lipshie, 8 AD2d 330, affd 9 NY2d 983; Brick v Cohn-HallMarx Co., 276 NY 259, 264; Glens Falls Ins. Co. v Reynolds, 3 AD2d 686).
Paver, decided during the pendency of this appeal, is of little solace to the plaintiff. The crux of that holding is that when the contract provides for arbitration, and that remedy has been invoked, arbitration lies despite the action being time-barred at law by the three-year Statute of Limitations or by CPLR 7502 (subd [b]), which bars arbitration if the claim is time-barred.
We have considered the impact of Paver in deciding Sears, Roebuck & Co. v Eneo Assoc. Here, as in Sears, neither party has invoked arbitration; thus there is no departure from or variant of the rule set forth in Sosnow v Paul (36 NY2d 780). Sosnow held that the date of accrual of an action in malpractice runs from the date the architect last rendered services. The "reality” and the "essence” approach in determining whether the three-year tort or six-year contract Statute of Limitations applies remains unimpaired by Paver. The existence of a contract calling for professional services does not, ipso facto, make applicable the contract Statute of Limitations. As long ago as 1888, in Webber v Herkimer & Mohawk St. R.R. Co. (109 NY 311), the Court of Appeals held that although a passenger who had sustained injuries had entered into a contract at the time of purchase of the ticket of passage and that there necessarily had been a breach in failing safely to transport, the essence of the action was the failure to use due care. Thus, there was negligence or malpractice, and not breach of contract.
In Alyssa Originals v Finkelstein (22 AD2d 701, affd 24 [441]*441NY2d 976), we held that a tenant seeking redress from his landlord for damages caused by a leaking roof was proceeding in tort and not for breach of the lease. Accountants who had failed to detect a bookkeeper’s false entries were held liable for malpractice and not for breach of contract (see Carr v Lipshie, supra). That negligence is the critical factor rather than breach of contract in an actual or implied contractual situation is evident from Blessington v McCrory Stores Corp. (305 NY 140), where a products liability situation permitted the six-year statute since there was no need to prove negligence.
A "bifurcated” approach, as suggested by the dissent, whereby functions of supervision are separated from those of drawing plans, etc., is similarly unavailing. It may well be that, under the Education Law, one who supervises construction work need not be a licensed architect or engineer. For responsibility to attach to an architect performing such supervisory services, there would be required specific contractual provisions encompassing such services. Here the contract expressly excepts such continuing services.
The Trial Term correctly denied the belated application to amend the complaint. No attorney, no matter the semantic gymnastics, could under the facts transform the pleading to contract, for: "[t]he nature of the charge of malpractice is not changed by failing to sufficiently state it in necessary detail, or by putting it in language suitable to the statement of a cause of action on contract, omitting the usual allegations as to the absence of skill and negligence” (Horowitz v Bogart, 218 App Div 158, 160).
Free access — add to your briefcase to read the full text and ask questions with AI
Hawkins, J.
This appeal is from a judgment in favor of the defendant upon the trial court’s denial of plaintiffs motion, upon oral argument, after a jury had been selected, to amend the complaint so as to plead a cause of action for breach of contract and to strike the defendant’s affirmative defense that the action is time-barred by the three-year Statute of Limitations (CPLR 214) and upon granting the defendant’s cross motion to dismiss the action as time-barred.
On December 9, 1963 the parties entered into a written agreement whereby the plaintiff engaged the defendant, an architect,vto prepare plans for the design and construction of a one-family house. The defendant rendered such professional [439]*439services during the following two years. The house was completed in 1965. The certificate of occupancy was issued on May 27, 1965. Plaintiff began occupancy on May 3, 1965. The last items of work, the black-topping of the driveway and the installation of a floor slab in the garage, were completed in December of that year. This action was commenced in December, 1969.
Inter alia, the contract, the standard American Institute of Architects (A.I.A.) form, provided that: (1) the defendant would (a) prepare studies, drawings and specifications; (b) confer with persons desiring to enter into contracts for work on the project; (c) issue certificates for payments, (d) "supervise the work being done * * * or [the] furnishing [of] materials”; and (e) guard against noncompliance by any contractor, "but the architect does not thereby guarantee the performance by any contractor or other person of his, its or their contracts”; and (2) the defendant’s "supervision is to be distinguished from the continuous personal superintendence which can be obtained by the employment of a clerk-of-the-works. However, the architect specifically agrees and covenants that he will be at the premises at least three times a week to carry out his duties of supervision.” The stated fee was 10% of the cost of the project. It was to be paid at listed amounts and percentages at various stages of construction, with the last part to be paid at the time of the issuance of the certificate of occupancy.
The plaintiff, a lay person, prepared her own complaint and did not engage counsel until some four months before the trial. She is acting on her own behalf on the instant appeal. In the colloquy upon the motion at Trial Term, the Justice presiding commended the plaintiff’s efforts in drawing the pleadings, but added that if he were requested to reform the complaint, it would, nevertheless, emerge "substantively” in "malpractice”. The plaintiff’s then attorney, in support of the motion, urged that "the complaint has verbiage sounding in tort and in contract.” He further argued that the plaintiff "copied the verbiage from form books, which she did not know the value of, and what to do” and that, the architect had not guaranteed a result as in the instances of a doctor effecting "a cure” or a lawyer guaranteeing that he "will win a case for the party.” The specific guarantee alleged is that the house would be completed no later than August 1,1964.
This court has also considered whether the three- or six-[440]*440year Statute of Limitations is applicable where an owner, aggrieved by the architect’s services, seeks redress (see Sears, Roebuck & Co. v Enco Assoc., 54 AD2d 13). Until the advent of Matter of Paver & Wildfoerster (Catholic High School Assn.) (38 NY2d 669) in February, 1976, the cases held, with some measure of uniformity, that absent a "special agreement” as sometimes is found in a physician-patient relationship involving a guaranteed cure, or in an owner-architect contract containing a guarantee of continuous and more-than-routine supervisory services, the three-year period applied. No matter the precise terminology of the plaint, or the endeavors to anchor the action to contract rather than tort, the "reality” and the "essence” are in tort and not in contract (see Carr v Lipshie, 8 AD2d 330, affd 9 NY2d 983; Brick v Cohn-HallMarx Co., 276 NY 259, 264; Glens Falls Ins. Co. v Reynolds, 3 AD2d 686).
Paver, decided during the pendency of this appeal, is of little solace to the plaintiff. The crux of that holding is that when the contract provides for arbitration, and that remedy has been invoked, arbitration lies despite the action being time-barred at law by the three-year Statute of Limitations or by CPLR 7502 (subd [b]), which bars arbitration if the claim is time-barred.
We have considered the impact of Paver in deciding Sears, Roebuck & Co. v Eneo Assoc. Here, as in Sears, neither party has invoked arbitration; thus there is no departure from or variant of the rule set forth in Sosnow v Paul (36 NY2d 780). Sosnow held that the date of accrual of an action in malpractice runs from the date the architect last rendered services. The "reality” and the "essence” approach in determining whether the three-year tort or six-year contract Statute of Limitations applies remains unimpaired by Paver. The existence of a contract calling for professional services does not, ipso facto, make applicable the contract Statute of Limitations. As long ago as 1888, in Webber v Herkimer & Mohawk St. R.R. Co. (109 NY 311), the Court of Appeals held that although a passenger who had sustained injuries had entered into a contract at the time of purchase of the ticket of passage and that there necessarily had been a breach in failing safely to transport, the essence of the action was the failure to use due care. Thus, there was negligence or malpractice, and not breach of contract.
In Alyssa Originals v Finkelstein (22 AD2d 701, affd 24 [441]*441NY2d 976), we held that a tenant seeking redress from his landlord for damages caused by a leaking roof was proceeding in tort and not for breach of the lease. Accountants who had failed to detect a bookkeeper’s false entries were held liable for malpractice and not for breach of contract (see Carr v Lipshie, supra). That negligence is the critical factor rather than breach of contract in an actual or implied contractual situation is evident from Blessington v McCrory Stores Corp. (305 NY 140), where a products liability situation permitted the six-year statute since there was no need to prove negligence.
A "bifurcated” approach, as suggested by the dissent, whereby functions of supervision are separated from those of drawing plans, etc., is similarly unavailing. It may well be that, under the Education Law, one who supervises construction work need not be a licensed architect or engineer. For responsibility to attach to an architect performing such supervisory services, there would be required specific contractual provisions encompassing such services. Here the contract expressly excepts such continuing services.
The Trial Term correctly denied the belated application to amend the complaint. No attorney, no matter the semantic gymnastics, could under the facts transform the pleading to contract, for: "[t]he nature of the charge of malpractice is not changed by failing to sufficiently state it in necessary detail, or by putting it in language suitable to the statement of a cause of action on contract, omitting the usual allegations as to the absence of skill and negligence” (Horowitz v Bogart, 218 App Div 158, 160).
Had the complaint been amended as proposed, and all allegations of lack of professional competence or negligence deleted, it would still not have availed the appellant (see Hurlburt v Gillett, 96 Misc 585, affd 176 App Div 893). It is not the phraseology, but rather the reality or essence of the plaint which controls. As we held in Liebler v Our Lady of Victory Hosp. (43 AD2d 898): "A cause of action in contract, as distinguished from one in malpractice, must be based upon the breach of a particular or special agreement (Robins v Finestone, 308 NY 543; Colvin v Smith, 276 App Div 9; Keating v Perkins, 250 App Div 9). An allegation of failure to provide medical care or failure to provide medical service in a proper manner is insufficient, for it is merely an attempt to [442]*442plead as a contract action one which- is essentially a malpractice action.”
Pre-Paver, there was little judicial doubt that the plaintiff’s sole recourse was in malpractice. If so, the action is time-barred. The question remains whether Paver has opened the floodgates or has so eroded or blurred the former confines distinguishing malpractice from contract as virtually to render the six-year statute applicable no matter how tenuous the claim of any continuing obligation on the part of the professional. In our opinion, it does not. Paver holds that where the parties, by contract, provided for arbitration, and resort has been had to arbitration, the arbitrator is not then bound by the former constricting rules segregating breach from delict. Hence, the arbitrator could proceed to adjudicate the parties’ claims and determine liability under either doctrine. As the court noted in Paver (supra, p 672): "[i]n determining whether a claim for property damage is barred by the Statute of Limitations, however, the court should not be constrained by the special rules developed largely in personal injury actions and which depart from the general principle that time limitations depend upon, and are confined to, the form of the remedy. The remedies available in arbitration are, of course, not confined to traditional forms at law. Thus, if a claim is substantially related to matters encompassed by the substantive agreement, it is immaterial, in applying the Statute of Limitations, whether it lies in 'contract’ or 'tort’. Hence, the owner’s claim against the architects, although cognizable in law in either contract or tort malpractice, was timely asserted within the six-year period of limitations.”
Under the circumstances at bar, the plaintiff cannot avail herself of the longer Statute of Limitations; such unavailability is not attributable to a lack of skill in drawing the complaint or in failing to use appropriate words of art. Her recourse was in malpractice and she failed timely to assert her rights.
The dissenting opinion observes, not without some cogency, that, paradoxically, an owner may have six years in which to proceed against a plumber, but only three years for redress against an architect. However, it would make the longer period applicable by bifurcating the architect’s services. When performing supervisory duties, he would be reclassified and [443]*443denigrated as rendering mere "artisanship” services, rather than being engaged "in the profession of architecture”.1
It would appear that the dissent has proceeded "after the manner of Procrustes”2 by so stretching the contract’s incidental provision for supervision, despite its express limitations, as to render every A. I. A. contract subject to the six-year Statute of Limitations. This extended period would obtain despite the failure of either party to invoke arbitration. Absent resort to arbitration, the limitations of the "traditional forms at law” prevail and the "exceptions” are "not to be proliferated” (see Matter of Paver & Wildfoerster [Catholic High School Assn.], 38 NY2d 669, 676, supra).
Disparate rules are not necessarily invidious. Very recently the Legislature, by amending CPLR 214 and adding CPLR 214-a (L 1975, ch 109), has provided for a lesser Statute of Limitations in medical malpractice actions, but has retained the three-year statute with respect to other professions.
As we observe in our opinion in Sears (54 AD2d 13, 19, supra), "the 'reality’ or 'essence’ approach does not truly provide a ready yardstick, for reality, like beauty, may lie in the eye of the beholder. In squaring Paver to the instant appeal, we do not believe it necessary to squeeze the facts into the Paver mold, for, properly understood, it is limited to the facts. In resorting to arbitration, the traditional and constricting rules applicable to actions at law in negligence have been contractually waived by the parties. Thus the parties, by virtue of their contract, CPLR 7502 (subd [b]) notwithstanding, may resolve by arbitration what they could be time-barred from doing at law. Paver expressly and definitively so holds. An arbitrator need not be concerned with neo-scholastic disputations and exegeses to determine whether the genesis is ex contractu or tortious.”
The dissent, I believe, does not draw the appropriate distinctions between arbitration and actions at law. In commenting upon Matter of Naetzker v Brocton Cent. School Dist. (50 [444]*444AD2d 142), the Court of Appeals stated in Paver (38 NY2d 669, 677, supra):
"The arbitration limitation statute was hardly intended to do that. Its purpose was to bar stale claims, not to fragmentize claims into legal categories, the very categories from which arbitration frees those who choose arbitration as their mode of dispute determination.
"It is also evident that a complex of facts in legal analysis may present a facet of contract law, or tort law, of quasi-contracts, or equity jurisprudence. These are legal concerns and legal definitional boundaries which prescribe the mode of judicial dispute determination. These are not the concerns or the boundaries of arbitrational dispute determination, nor should they be made so indirectly” (emphasis supplied).
Whether described, as in the dissent, as a "ritualistic contract of adhesion”, in referring to the A. I. A. contract, or whether the relationship had less formal antecedents, nevertheless, the particular period of limitation may well "depend upon the form of the remedy.”
In resorting to arbitration, where so provided by contract, CPLR 7502 (subd [b]) to the contrary notwithstanding, litigants may have resolved by arbitration what they could be time-barred from having adjudicated at law. The dissent’s extended quotation from Paver, relating to the timeliness of the demand for arbitration, is followed by explanatory and significantly restricting language (supra, pp 675-676): "In any event, whatever its validity today and whatever its relation to larger general principles, the rule of the Webber case and those in its wake should not be blanketed to cover arbitration, an area of dispute determination not confined to the forms and procedural channels of the law. There is little authority, and none controlling, which has applied the Webber exception to arbitration as distinguished from actions at law.”
It perforce follows, we reiterate, that the ratio decidendi of Paver, involving both claims of "defects of design” and "faulty supervision”, is that those who choose arbitration are "not confined to the forms and procedural channels of the law” (Matter of Paver & Wildfoester [Catholic High School Assn.] supra, p 676).
Accordingly, the order of Special Term should be affirmed.