The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Crown Castle USA Inc., Crown Castle GT Company LLC, Crown Castle Atlantic LLC, Crown Atlantic Company LLC and Crown Communication Inc., (collectively "Crown") brought this action against Fred A. Nudd Corporation ("Nudd"), Underhill Consulting Engineers, P.C., George R. Underhill (collectively ("Underhill"), Steven F. Carini ("Carini") and Derek R. Hartzell (collectively "defendants") alleging breach of contract, breach of express warranty, breach of implied warranty and misrepresentation as well as professional negligence against defendants. Specifically, Crown's complaint contains one cause of action for professional negligence against Underhill alleging a failure to "exercise the requisite professional skill" in the review of the design documents for several monopoles at issue.
Underhill moves for summary judgment*fn1 seeking dismissal of Crown's professional negligence claim regarding thirty-seven of the thirty-nine monopoles at issue in this case. Underhill claims that it seeks summary judgment with regard to twenty-two monopoles*fn2 for which it provided no professional services and on that basis Underhill had absolutely no relationship to these twenty-two monopoles.*fn3 Moreover, summary judgment is sought regarding the remaining fifteen monopoles*fn4 since any professional services Underhill may have provided were completed on a date more than three years before the commencement of this action on April 8, 2005 and thus barred by the statute of limitations under New York's CPLR 214(6). In addition, Underhill moves for summary judgment dismissing Carini's cross-claim for contribution and indemnity.
Crown opposes Underhill's motion, and contends that Underhill disregards fundamental factual developments in this case that should resolve the statute of limitations defense in Crown's favor. In addition, Crown argues that Underhill performed negligent professional engineering services concerning Crown monopoles until at least 2003. Crown claims that this lawsuit was filed within three years of the completion of the negligent professional services. Further, as it relates to work performed by Underhill more than three years before the filing of the lawsuit, Crown contends that a continuing professional relationship existed until at least 2003 in which Underhill undertook to rectify the alleged malpractice, which tolls the statute of limitations. Carini has not opposed Underhill's motion.
For the reasons set forth in more detail below, Underhill's motion for summary judgment seeking dismissal with respect to Crown's professional negligence claim is granted in part and denied in part and Underhill's motion for summary judgment seeking dismissal of Carini's cross-claims for contribution and indemnity is granted.
This is Underhill's second motion for summary judgment and the third motion for summary judgment filed in this case. Accordingly, the Court assumes familiarity with the procedural and factual background set forth in its prior decisions in this matter. See Crown Castle USA Inc. et al. v. Fred A. Nudd Corp., et al., 2007 WL 700901 (W.D.N.Y.2007); Crown Castle USA Inc. et al. v. Fred A. Nudd Corp., et al., 2008 WL 163685 (W.D.N.Y.2008). Thus, the Court will not repeat all the facts and prior proceedings and will only address the most pertinent information as it relates to this summary judgment motion.
A. Monopoles 801343, 801719, 802128, 804636, 851860, 868142, 800629 and 801511
Underhill argues that its professional services were limited to reviewing and then stamping the design documents for several of the monopoles*fn5 at issue. See Underhill's Amended Statement of Facts ("UASOF"), ¶ 4. Further, Underhill contends that its professional services with regard to the monopoles in question were completed no later than the date the design documents were stamped. It is undisputed that Underhill was retained by Nudd to review and seal the original drawings and calculations for eight monopoles listed below for the following dates:
801343 7/16/2001 851860 11/01/1999 801719 2/01/2001 868142 4/09/2001 802128 2/21/2001 800629 8/01/1999 804636 10/--/2001 801511 11/15/1999
See AUSOF., ¶ 4, Barley Aff., ¶ 7.*fn6 With respect to monopoles 851860, 800629, 801511 and 868142, Nudd sold these monopoles to entities other than Crown, e.g. Verizon or Summit Technical Group.*fn7 See March 1, 2007 Affidavit of Lowell Nudd ("March 2007 Nudd Aff."), ¶ 9 at Doc. # 62. Subsequently, these entities sold the monopoles to Crown. In addition, Underhill claims that it's review and sealing of each of the original drawings and calculations for the eights monopoles was done on a pole by pole basis. See AUSOF, ¶ 5. Underhill further claims that its services relating to the 8 monopoles ceased when the original drawings and calculations were reviewed and sealed. See id., ¶ 9. In this regard, Underhill contends that it did not continuously provide additional services concerning any of the 8 monopoles after the date of its original review and sealing.*fn8 See id., ¶ 11.
In contrast, Crown claims that from 2001 until at least 2003, Underhill was retained by Nudd to evaluate the defective monopole design relating to Nudd's entire monopole portfolio. See Crown's Statement of Material Facts in Dispute ("CSMF"), ¶ 8. According to Crown, Nudd hired Underhill to evaluate all monopole towers designed by Nudd which did not incorporate a gust response factor.
See id. Crown contends that George Underhill described the work as "corrections" work, wherein he was to review the details and calculations in order to strengthen the monopoles that were flawed due to the missing gust response factor. See id. Crown claims that Underhill performed the corrections work for Nudd relating ...