MARK MAHERAS, DANA WHITTLE, CHRISTINA KELSEY, and ADRIAN SOLOMON, Plaintiffs.
AYAZ AWAN, NEW YORK BEST DEVELOPMENT, INC., HIGH RISE DEVELOPMENT ENTERPRISES, SABBA SALEEMI, K.T. SEUNG, OSCAR JACKSON, CLEMENT CHAMBERS, KNC ELECTRIC, NEW YORK CITY DEPARTMENT OF BUILDINGS, CHRIS WOLF, Defendants. Index No.114296/2011
Marqaret A. Chan Justice
Plaintiffs are owners of a certain property known as 261 West 137th Street, New York, NY. The basis of their action is the alleged faulty construction and renovation work done by the various contractor defendants. Relevant to the motion at hand by the municipal defendants, New York City Department of Buildings (DOB) and one of its inspectors, Chris Wolf (Wolf), are plaintiffs' allegations of them committing fraud and conspiring with co-defendants to defraud plaintiffs, general negligence, and negligence under the theory of respondeat superior. The municipal defendants moved pursuant to CPLR 3211 (a)(2), (5) and (7) to dismiss the complaint on the grounds that it is time barred pursuant to General Municipal Law § 50-i, failure to state a cause of action for allegations of fraud and conspiracy, and negligence; and improper procedural review of an administrative determination. The remaining defendants are silent as to this motion.
Pursuant to plaintiffs' dissertation of the facts, it is learned that in March 2007, plaintiffs purchased the property as an investment and planned to do extensive rehabilitation and renovation. Plaintiffs engaged defendant Ayaz Awan (A wan), president of defendant New York Best Development (NY Best) to do the construction and renovation work. The reconstruction included a total demolition and gut renovation of the electric and HVAC systems. Through Awan, plaintiffs hired defendant K.T. Seung (Seung) as architect. Plaintiffs subsequently learned that Seung was an engineer, and not an architect. They charged that Chris Wolf and "possibly others" at the DOB, together with the contractor defendants schemed to defraud them (Aff in Opp p 5, ¶ 12).
On December 3, 2008, Wolf inspected the premises from roof to basement. Plaintiffs were not present at the inspection as Awan told them residents could not be present. Wolf issued the Certificate of Occupancy (C of O) despite the many open and notorious violations, some that are even extremely hazardous. On September 7, 2010, Wolf reinspeeted the premises. This time plaintiff Maheras was present, and pointed out the defects to Wolf. When Maheras realized Wolf was also the first inspector, Wolf "broke down", "by his speech and conduct that he had been exposed as a fraud, declaring unexpectedly that he was so sorry that he had caused [them] so much turmoil" (id at p 15 ¶ 41). According to Maheras, Wolf confessed to overlooking the building code violations, and gave him originals of the violations he found, but did not submit, in the December 3, 2008 inspection, so that plaintiffs would have a "paper trail" in possible future litigation. Wolf had told him that DOB inspectors were discouraged to find violations and that most inspectors were not qualified or had enough time to conduct a thorough inspection. Wolf also told Maheras that he had a personal relationship with Awan, who gave him stock tips; he even had Awan's cell phone number. Plaintiffs claim that due to the municipal defendants' collusion with Awan, Seung and other defendants, they were caused to declare bankruptcy.
Based on Wolf s break down, and other indicators, plaintiffs surmised that the DOB must have been in cahoots with Awan and Seung's fraud and conspiracy. One such indicator of collusion is that Seung was able to somehow persuade the DOB to "restore" the building permit which had expired before the C of O was issued (id. at pp 8-9). Seung was also able to get a DOB mechanical waiver without submitting any mechanical drawing or paperwork; yet DOB could not explain how that could be done. Plaintiffs charged that the C of O was improperly issued because there were multiple major construction and mechanical defects, and deduced that, if the delects were uncovered before a proper C of O was issued, Awan and Seung "could be forced outside their comfort zone with the coconspirators in the DOB" (id at p 9 ¶ 23).
The municipal defendants corrected the facts with exhibits to reflect that no C of O was issued after the December 3, 2008 inspection due to Wolfs objections. A temporary C of O was issued on January 16, 2009 after an inspection by another inspector, and the final C of O, effective April 9, 2009, was issued on April 4, 2009 upon yet another inspection by a different inspector (Defts' Exhs. B, C, and D). Plaintiffs filed a notice of claim on September 27, 2010, and the instant action on December 20, 2011.
I. Statute of Limitations
Addressing first the Statute of Limitations argument, the municipal defendants assert that the plaintiffs' negligence claims against them are time-barred pursuant to General Municipal Law (GML) § 50-i[c], which provides plaintiffs with one year and ninety days from the date of the occurrence to commence an action. The municipal defendants posit that even if the occurrence giving rise to the negligence claims arose on the later date of April 9, 2009, when the final C of O took effect, the action commenced on December 20, 2011, is untimely.
Plaintiffs argue that Wolfs representations, made in bad faith, precluded the municipal defendants from asserting the Statute of Limitations defense. Quoting General Stencils, Inc. v Chiappa(18 N.Y.2dl25, 128 ), plaintiffs argue that under the doctrine of equitable estoppel, the statute of limitations defense cannot be used when the delay is caused by defendants' affirmative wrongdoing. Plaintiffs claim that they learned of the collusion between Wolf and Awan on September 7, 2010, thus "[t]his [ajction was timely commenced on December 20, 2010 [emphasis added]" (Pltfs' Memo of Law p 12).
A review of the summons and complaint shows that they were filed on December 20, 2011, not 2010. Assuming that it was a typographical error, plaintiffs' argument is nonetheless unavailing as one year and ninety days from September 7, 2010 is December 7, 2011. That said, plaintiffs' argument fails because the date of the occurrence is the effective date the final C of O, April 9, 2009. Plaintiffs' equitable estoppel argument does not serve them either because plaintiffs must show "that subsequent and specific actions by defendants somehow kept them from timely bringing suit" (Zumpano v Quinn, 6 NY3d 666, 674  [declining to extend General Stencils); Nichols v Curtis, 2013 WL 1111088 [1st Dept, Mar 19, 2013]). In the instant case, there is no showing that even in the scenario that plaintiff would have this court adopt - the accrual date being the date from Wolfs alleged confession - the municipal defendants did anything subsequent to that to keep them from commencing the action.
Citing Kiernan v Thompson (134 A.D.2d 27 [3d Dept 1987] affd 73 N.Y.2d 840 ), plaintiffs also argued that the negligence is continuous, meaning that the statute of limitations renews each day as the condition exists. Tn Kiernan, plaintiff was injured when she tripped on a crack on the sidewalk that the City created when it removed a tree stump two years earlier. The Appellate Division, Third Department found that the City created an unsafe condition when it removed the tree stump. Consequently, notice of the defect was not required. And as the City has a duty to maintain its public sidewalks in a safe condition, failure to do so is a continuing breach of its duty and each day the unsafe condition existed served to renew the accrual of time for purposes of GML § 50- i (id. 134 A.D.2d at 29-30). However, the Court of Appeals, which affirmed the Appellate Division's order, nonetheless found the Appellate Division had erred in construing a separate cause of action based on the City's removal of the tree stump rather than its failure to properly maintain the sidewalk. The Court of Appeals reasoned that if the negligence was the discrete act of removing the tree stump, the statute of limitations had long expired for purposes of GML § 50-i (Kiernan, 73 N.Y.2d 840, 842). Here, the duty of the DOB is to approve or disapprove an application and certify that the building substantially conforms to plans and codes (see Admin. Code § 28-118.4 et seq). Plaintiffs do not suggest that ...