town employees for purposes of tort law. Cf. Hartmann v. Tremaine, 250 A.D. 188, 293 N.Y.S. 919, 925 (App. Div. 1937) (plaintiff's appointment as city surveyor and taking oath of office did not make plaintiff city employee where city exercised no control over manner of performance).
The undisputed facts overwhelmingly establish that the Board of Fire Underwriters, and not the town, controls the manner in which inspections are performed. It is the Board that hires, trains, supervises, assigns, schedules, pays, disciplines and fires its inspectors. The town takes no part in those activities. The Board receives its fee directly from the owner or the contractor. The town neither collects any fees nor pays any funds to the Board as part of the inspection requirement. Every factor courts have used to determine whether a municipality exercises control sufficient to be characterized as establishing an employment relationship is lacking in this case.
The Board argues that its inspectors are not independent contractors of the town because the Board has no contract with the town and therefore they are entitled to the same protection as town employees. While the absence of a contract makes unreasonable a finding that the Board is an independent contractor, it makes it even less appropriate to consider Board inspectors town employees. Rather than merely contracting out electrical inspections, the town has delegated the responsibility for making inspections. Viewed in this light, the Board of Fire Underwriters is neither an employee nor an independent contractor of the town, but a contractor (or subcontractor) of Ru-Val or the Vicaris.
VI. Law Relating to Statute of Limitations
A. Claims Against Municipalities
New York's statute of limitations for negligence actions against towns, cities, counties, or villages requires that any action be brought within one year and 90 days after the event occurs upon which the claim is based. N.Y.S. Gen. Mun. L. § 50-i (1986). Additionally, a plaintiff must file a notice of claim for negligence with the intended government defendant within 90 days after the claim arises. N.Y.S. Gen. Mun. L. § 50-e(1)(a) (1986).
Several lower courts have held that section 50-i limits claims against individual officers, agents, or employees of a municipality provided that the individual has a right to indemnity from the municipality. See, e.g., Pileckas v. Trzaskos, 126 A.D.2d 926, 511 N.Y.S.2d 438, 438-39 (App. Div. 3d Dep't), appeal denied, 70 N.Y.2d 601, 518 N.Y.S.2d 1023 (1987) (holding section 50-i limitations applied to claim against police chief because state law requires municipalities to hold police harmless); Hahin v. City of Buffalo, 41 Misc. 2d 1018, 246 N.Y.S.2d 917, 918-19 (Sup. Ct. Erie County 1964) (holding § 50-i applies to actions against city employees because city must indemnify its employee); Sorge v. City of New York, 56 Misc. 2d 414, 288 N.Y.S.2d 787, 793 (Sup. Ct. N.Y. County 1968) (holding sections 50-e and 50-i apply "where employees are sued alone in their capacity as agents, servants, or employees of the City . . . if they are entitled to indemnity") (emphasis added).
Defendant argues that because the New York Court of Appeals does not appear to have ruled on the matter, municipal employees are protected by the shorter limitations period under section 50-i whether or not they are entitled to indemnity. The issue the lower courts addressed, however, was not whether employees' inclusion under section 50-i was confined to those entitled to indemnification, but whether section 50-i should be held to include individual municipal employees at all. Thus the Court of Appeals's silence to date means only that it has not yet ruled on whether any municipal employee is protected by the limitation in section 50-i.
The reasoning of the lower New York courts is foreign to the Board's position. As the Hahin court noted, "since the city must indemnify its employee, the city is the real party in interest." Hahin, 246 N.Y.S.2d at 918-19; see also Sorge, 288 N.Y.S.2d at 792 ("If there is public corporation responsibility to indemnify, the public corporation becomes the real party in interest"). Application of the municipal limitation period to individuals thus protects the municipality, not the individual, by limiting the municipality's liability. See, e.g., Bacalokonstantis v. Nichols, 141 A.D.2d 482, 529 N.Y.S.2d 111, 113 (App. Div. 2d Dep't 1988) (claim against a county hospital employee was governed by section 50-i largely based on county attorney's decision to represent him).
B. Contract and Tort Claims
New York's statute of limitations for contract claims is six years. N.Y.C.P.L.R. § 213(2). An action for negligence causing injury to property or personal injury must generally be brought within three years. N.Y.C.P.L.R. § 214(4), 214(5). Actions for which no specific period is prescribed by law must be brought within six years. N.Y.C.P.L.R. § 213(1).
A contract claim generally accrues at the time of the breach, not when the injury is sustained. City Sch. Dist. of Newburgh v. Stubbins & Associates, 85 N.Y.2d 535, 538, 626 N.Y.S.2d 741, 742-43, 650 N.E.2d 399 (1995); Bulova Watch Co. v. Celotex Corp., 46 N.Y.2d 606, 610, 415 N.Y.S.2d 817, 819, 389 N.E.2d 130 (1979). Plaintiff's knowledge of the breach is not necessary for the statute to start running. Varga v. Credit Suisse, 5 A.D.2d 289, 171 N.Y.S.2d 674, 677-78 (App. Div. 1st Dep't 1958) (citing, inter alia, Wood v. Young, 141 N.Y. 211, 36 N.E. 193 (1894)).
A tort claim, by contrast, generally arises when the injury is sustained. See Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 403, 373 N.Y.S.2d 39, 44, 335 N.E.2d 275 (1975) (noting that in most, but not all, tort claims, statute runs from time of injury); 1 Harold L. Korn, Arthur P. Miller et al., New York Civil Practice P 214.16 (1995). The time the injury occurs is distinct from both the time of tortious conduct and the time the injury is discovered. See 1 Korn, Miller, et al. at P 214.16 ("Courts begin to measure from the time of impact, or the time the act complained of produces resultant consequences . . . .") (citations omitted); cf. Braune v. Abbott Laboratories, 895 F. Supp. 530 (E.D.N.Y. 1995) (discovery rule); N.Y.C.P.L.R. § 214-c (1990) (discovery rule).
In building construction cases where the claim is simultaneously for breach of contract and for injury to property, New York cases hold that an owner plaintiff's cause of action accrues against contractors or architects from either the time the work is completed or a certificate is issued. City Sch. Dist. of Newburgh v. Stubbins & Associates, Inc., 85 N.Y.2d 535, 537, 626 N.Y.S.2d 741, 742, 650 N.E.2d 399 (1995) (owner against builder); Sears, Roebuck & Co. v. Enco Associates, Inc. 43 N.Y.2d 389 393-95, 401 N.Y.S.2d 767, 769, 372 N.E.2d 555 (1977) (owner against architect); Harbour Pointe Village Homeowners Ass'n, Inc. v. Marrano/Marc Equity Joint Venture, 185 A.D.2d 648, 586 N.Y.S.2d 55, 56 (App. Div. 4th Dep't 1992) (owner against developer accrued at latest upon filing of certificate of occupancy for last unit); Sosnow v. Paul, 43 A.D.2d 978, 352 N.Y.S.2d 502 (App. Div. 1974), aff'd, 36 N.Y.2d 780, 369 N.Y.S.2d 693, 330 N.E.2d 643 (1975) (owner against architect); see also Jane M. Draper, Annotation, When Statute of Limitations Begins to Run on Negligent Design Claim Against Architect, 90 A.L.R.3d 507 (1979).
The three-year tort statute of limitations applies in construction cases unless the action is for property damage and a contractual relationship exists between the parties. Sears, Roebuck & Co., 43 N.Y.2d at 394-95, 401 N.Y.S.2d at 770 (citing Matter of Paver & Wildfoerster (Catholic High Sch. Ass'n), 38 N.Y.2d 669, 382 N.Y.S.2d 22 (1976)); 1 Korn, Miller, et al., New York Civil Practice P 214.14. If the action is brought after the three-year period for negligent injury to property, but within the six-year contract limitations period, the claim is not time-barred but damages are limited to those available in contract. Sears, Roebuck & Co., 43 N.Y.2d at 396-97, 401 N.Y.S.2d at 771.
The time of completion rule pertaining to contractors and architects applies against owner-plaintiffs. See City Sch. Dist., 85 N.Y.2d at 537, 626 N.Y.S.2d at 742 (owner's cause of action accrues against builder at time of completion of performance); Sears, Roebuck & Co., 43 N.Y.2d at 394, 401 N.Y.S.2d at 770 (owners claims against architects accrue at time of completion of construction (citing Sosnow v. Paul, 36 N.Y.2d 780, 369 N.Y.S.2d 693, 330 N.E.2d 643 (1975))). The owner need not have been in a direct contractual relationship with the defendant for the completion rule to apply. See City Sch. Dist., 85 N.Y.2d at 538-39 626 N.Y.S.2d at 743 (completion rule barred owner's claim against builder despite lack of privity where Urban Development Corporation contracted with defendant to build library for plaintiff); Harbour Pointe Homeowners Ass'n., 185 A.D.2d 648, 586 N.Y.S.2d 55, 56 (App. Div. 4th Dep't 1992) (action by title owners of condominium against developer time-barred under completion rule).
The time of completion rule in building construction cases is derived from a judicial gloss concerning professional malpractice. The general rule in malpractice claims is that accrual begins on the date the alleged act occurs. See Schwartz v. Heyden Newport Chemical Corp., 12 N.Y.2d 212, 217, 237 N.Y.S.2d 714, 717-18, 188 N.E.2d 142 (1963) (noting different doctrinal origins of accrual rules for ordinary negligence and for malpractice); 1 Korn, Miller, et al. at P 214.17 (citing Sosnow v. Paul). Courts now treat negligence claims against architects as essentially the same as malpractice claims because malpractice "means the negligence of a member of a profession in his relations with his client or his patient." Cubito v. Kreisberg, 69 A.D.2d 738, 419 N.Y.S.2d 578, 580-81 (App. Div. 2d Dep't 1979), aff'd, 51 N.Y.2d 900, 434 N.Y.S.2d 991, 415 N.E.2d 979 (1980); see also Sears, Roebuck & Co., 43 N.Y.2d at 396-97, 401 N.Y.S.2d at 770-71 (action may be described as tort for professional malpractice or contract for nonperformance; applicable statute of limitations determined by remedy sought); County of Broome v. Vincent J. Smith, Inc., 78 Misc. 2d 889, 358 N.Y.S.2d 998, 1003 (characterizing architect's negligence as professional malpractice "as with the doctor, lawyer, or accountant").
While the limitations provisions concerning negligence distinguish certain forms of malpractice in terms of the length of the limitation period, see N.Y.C.P.L.R. § 214-a (two and a half-year limitation period for medical, dental, and podiatric malpractice), no statutory distinction is made regarding the time of claim accrual. Exceptions to the general negligence rule that the claim accrues at the time of injury have thus been carved out when "the cases in point involved a professional relationship between the parties." Cubito, 419 N.Y.S.2d at 581. The cases have protected professionals because "occasional hardship is outweighed by the advantage in outlawing stale claims." Id. (quoting Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 302, 200 N.E. 824 (1936)).
These rules of law have been strongly reaffirmed by the New York Court of Appeals. As the Court recently noted:
In cases against architects or contractors, the accrual date for Statute of Limitations purposes is completion of performance. . . . No matter how a claim is characterized in the complaint -- negligence, malpractice, breach of contract -- an owner's claim arising out of defective construction accrues on the date of completion, since all liability has its genesis in the contractual relationship of the parties.