Generally, an action for malpractice other than for medical, dental or podiatric malpractice must be commenced within 3 years from the date of injury. The issue with this statute of limitations is that defects may be concealed until after the statutory period has run, leaving the injured party with no recourse against an architect or engineer, for example, who has committed malpractice. To avoid this sometimes inequitable result, courts have enforced the “continuous treatment doctrine”, which allows for a tolling(extension) of the statutory period for as long as the professional relationship continues.
In Broome County v. Vincent J. Smith, Inc., 78 Misc. 2d 889, 358 N.Y.S. 2d 998 (Sup 1974), for example, a county owned building was completed but still had issues with the roof leaking. Although the project architect had long before completed the design for the building, it remained involved in the project on behalf of the county in an attempt to correct the leak. The roof itself was also constructed under the supervision of the architect. The court found that the statutory period for the county to bring suit against the architect did not accrue until the architect officially stopped assisting with the roof problem and the professional relationship between the parties ended. The court’s rationale was that the continuing professional relationship between the parties led to the county believing the roof problem would be corrected and it would be unfair to the county to have the statutory period accrue from the first time the architect did any work on the project.
The architect or engineer’s continued involvement in the project must be related to the work itself in order for the “continuous treatment doctrine” to apply. Additionally, the involvement of the architect or engineer must closely follow the completion date of the project.
Based on these requirements, the court in Cabrini Medical Center v. Desina, 64 N.Y.2d 1059, 489 N.Y.S.2d 872 (1985) refused to allow the plaintiff building owner to invoke the “continuous treatment doctrine”. In that case the plaintiff itself instructed its architect to release all funds payable to defendants, thereby signaling the completion of work under the terms of the contract. Moreover, the issuance of a final certificate of payment by the architect and occupancy of the building by plaintiff further indicated that the project had been completed. The court further found that repair work performed by the defendants’ masonry subcontractor approximately 7 years after the completion of the project did not toll the statutory period. The masonry work was found to be incidental to the construction of the building, and not an attempt to correct any faulty construction on which the building owner based its suit. Therefore the suit, brought 10 years after the completion of the project, was not within the statutory period and was dismissed.