IN THE MATTER OF ORISKANY CENTRAL SCHOOL DISTRICT, APPELLANTv. EDMUND J.
BOOTH ARCHITECTS, RESPONDANT
85 N.Y.2d 995, 654 N.E.2d 1208, 630 N.Y.S.2d 960
June 8, 1995
4 No. 153 (1995 NY Int. 142)
Decided June 8, 1995
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Ted H. Williams, for Appellant
Samuel M. Vulcano, for Respondent
MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs.
On June 1, 1984, plaintiff and defendant architect entered into a
contract in which defendant agreed to perform architectural services
in connection with the re-roofing of the Oriskany Central High School
and the Oriskany Elementary School. Article 9 of the contract provided
for the arbitration of any disputes within a reasonable time after a
dispute arose and with the proviso that no demand for the arbitration
of a dispute could be made "after the date when institution of legal
or equitable proceedings based on such claim, dispute or other matter
in question would be barred by the applicable statute of limitations."
Paragraph 11.3 of the contract stated that "the applicable statute of
limitations shall commence to run and any alleged cause of action sh
all be deemed to have accrued in any and all events not later than the
relevant Date of Substantial Completion of the Work."
The parties agree that a six year statute of limitations is
applicable. Plaintiff argues that since the architect never certified
that the work was substantially complete, there was no time bar when
it commenced a lawsuit on April 8, 1992, alleging brea ch of contract
for latent defects in the roof. On April 28, 1992, defendant architect
served an answer which contained an affirmative defense of the statute
of limitations and, on July 8, 1992, moved to dismiss the action on
the grounds that arbitration was the appropriate remedy. Subsequently,
on July 22, 1992, defendant requested that the motion to dismiss be
converted into an application for an order compelling arbitration. On
August 18, 1992, plaintiff cross-moved to dismiss the defendant's
affirma tive defense of the statute of limitations. On February 22,
1993, defendant architect made a written demand for arbitration.
Supreme Court, on July 12, 1993, determined that the statute of
SNIPPETS:
IN THE MATTER OF ORISKANY CENTRAL SCHOOL DISTRICT,
EDMUND J. BOOTH ARCHITECTS, RESPONDANT
This memorandum is uncorrected and subject to revision before publication in the New York
The order of the Appellate Division should be affirmed, with costs.
On June 1, 1984, plaintiff and defendant architect entered into a contract in which defendant
Article 9 of the contract provided for the arbitration of any disputes within a reasonable
Paragraph 11.3 of the contract stated that "the applicable statute of limitations shall
On April 28, 1992, defendant architect served an answer which contained an affirmative
On August 18, 1992, plaintiff cross-moved to dismiss the defendant's affirma tive defense of
On February 22, 1993, defendant architect made a written demand for arbitration.
Supreme Court, on July 12, 1993, determined that the statute of limitations had not expired,
The Appellate Division reversed, citing the Certificate of Suitability of December 18, 1985
Because no Certificate of Substantial Completion was ever issued, the Certificate of
Paragraph 8.1.3 of the General Conditions defined the date of substantial completion as "the
Moreover, an Application and Certificate for Payment, indicating that the work was complete
The President of the Board of Education and the District Superintendent of Schools also
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
|
