FILED: APPELLATE DIVISION - 4TH DEPT 08/15/2019 08:54 AM CA 19-00850

NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 08/15/2019

To be Argued by:
MATTHEW D. HOLMES
(Time Requested: 10 Minutes)

New York Supreme Court

Appellate Division—Fourth Department
Docket No.:
CA 18-02366
THE TOWN OF WEST SENECA, NEW YORK, CA 19-00833
CA 19-00850
Plaintiff-Appellant,

– against –

LOUIS DESIGN SOLUTIONS ARCHITECTURE, LLC

(f/k/a Louis Design Group),

Defendant-Respondent.

BRIEF FOR PLAINTIFF-APPELLANT

ERNSTROM & DRESTE, LLP

John W. Dreste, Esq.
Matthew D. Holmes, Esq.
Attorneys for Plaintiff-Appellant
925 Clinton Square
Rochester, New York 14604
(585) 473-3100
jdreste@ed-llp.com
mholmes@ed-llp.com

Erie County Clerk’s Index No. 815187/2017

 TABLE OF CONTENTS
TABLE OF AUTHORITIES ………………………………………………………iii

QUESTIONS PRESENTED ..................................................................................... 1

PRELIMINARY STATEMENT .............................................................................. 3

STATEMENT OF FACTS ....................................................................................... 4

ARGUMENT

POINT I

The Town Timely Commenced Its Action Against Louis Design .................. 7

a. CPLR §§214-d and 214(6), enacted within one month of each other,
apply to two different types of claims. ................................................ 8

1. CPLR §214(6) applies to “malpractice” claims between a

professional and its client ........................................................... 10

2. CPLR §214-d applies to negligence claims between parties not

in privity ....................................................................................... 12

b. Reconciling CPLR §214-d and CPLR §214(6) establishes that the

Town’s claim is valid and timely ...................................................... 14

POINT II

The Town Satisfied the Heightened Standard Under CPLR §3211(H) ..... 19

POINT III

The Court Improperly Excluded the Transcript and Memorandum of Law

From the Record on Appeal....................................................................... 22

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CONCLUSION ........................................................................................................ 25

PRINTING SPECIFICATIONS STATEMENT…………………………………..26

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 TABLE OF AUTHORITIES
Cases
1650 Forest Ave. Corp. v Farrell Fritz, P.C., 17 Misc 3d 132[A]
[2d Dep't 2007] ......................................................................................................... 11

300 Gramatan Avenue Associates v State Division of Human Rights,

45 NY2d 176 [1978] ................................................................................................. 20

Belunes v Minskoff Grant Realty & Management Corp., 278 AD2d 143
[1st Dep’t 2000] ........................................................................................................ 16

Castle Village Owners Corp. v Greater New York Mutual Insurance Co.,
868 NYS2d 189 [1st Dep’t 2008] ............................................................................. 20

Chase Scientific Research, Inc. v. NIA Group, Inc., 96 NY2d 20 [2001] ................ 11

Coleman v Wells Fargo & Co., 125 AD3d 716 [2d Dep't 2015] ............................... 7

Collins v Davirro, 160 AD3d 1343 [4th Dep’t 2018] ................................................ 8

Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of

Commerce, 21 NY3d 55 [2013]............................................................................. 9,10

Corina v Boys & Girls Club of Schenectady, Inc., 82 AD3d 1477

[3d Dep’t 2011] ........................................................................................................ 23

Cubito v Kreisberg, 69 AD2d 738, 742 [2d Dep’t 1979], aff’d.,

51 NY2d 900 [1980] ......................................................................... 11, 14, 15, 17, 18

Goodwin v Pretorious, 105 AD3d 207 [4th Dep’t 2013] ......................................... 10

Gress v Brown, 20 NY3d 957 [2012] ....................................................................... 10

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In re Kliment, 3 AD3d 143 [1st Dep’t 2004] ............................................................ 12

Kai Lin v Strong Health, 82 AD3d 1585 [Appeal 1] [4th Dep't 2011] .................... 23

Kenny v Turner Constr. Co., 107 AD3d 412, 413-14 [1st Dep’t 2003] ................... 20

Livingston v En-Consultants, Inc., 115 AD3d 650 [2d Dep't 2014] ........................ 11

Majewski v Broadalpin-Perth Cent. School Dist., 91 NY2d 577 [1998] ................... 9

Mamdough v Leger, 34 Misc 3d 1212[A] [Sup Ct, Kings Cty,

December 23, 2011] .................................................................................................. 11

Manhattanville College v James John Romeo Consulting Eng’r, P.C.,

5 AD3d 637 [2d Dep’t 2004] .................................................................................... 16

Matter of Albano v Kirby, 36 NY2d 526 [1975] ........................................................ 9

Matter of Christopher RR v St. Lawrence County Dept. of Social Servs.,

113 AD3d 899 [3d Dep’t 2014] ................................................................................ 23

Mosey v County of Erie, 148 AD3d 1572 [4th Dep't 2017] ..................................... 23

Onewest Bank, FSB v Spencer, 145 AD3d 1488 [4th Dep’t 2016] .......................... 23

Patrolmen’s Benevolent Assn v City of New York, 41 NY2d 205 [1976] ............ 9, 10

Santulli v Englert, Reilly & McHugh, P.C., 78 NY2d 700 [1992] ........................... 12

Ville de Port, Inc. v Hess Corp., 34 Misc 3d 1214(A) [Sup Ct, Kings Cty,
January 18, 2012] ...................................................................................................... 16

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Statutes
CPLR §214-d ..................................................................................................... passim
CPLR §214(4) .................................................................................................... passim
CPLR §5526.................................................................................................... 3, 22, 23
CPLR §214(6) .................................................................................................... passim
CPLR §3211(a)(5) .............................................................................................. 3, 5, 7
CPLR §3211(h) ................................................................................................... 19, 20

Rules
Statewide Rule of Appellate Practice 1250.7(b)(4) ............................................ 22, 23

Other
L. 1996, ch. 623, §1………………………………………………………………..10

L. 1996, ch. 682, §1 .................................................................................................. 13

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 QUESTIONS PRESENTED

1. Did the Trial Court commit error in dismissing the Complaint when it

completely disregarded CPLR §214(4) and the plain language of CPLR

§214-d, which governs claims for negligently caused property damage, and

instead applied the statute of limitations for malpractice claims found in CPLR

§214(6)?

Yes, the Trial Court erred because it failed to recognize that CPLR §214-d,

enacted shortly after the amendment to CPLR §214(6), and CPLR §214(4)

applied to Plaintiff’s Complaint, as Plaintiff sought recovery for property

damage due to Defendant’s negligent actions.

2. Did the Trial Court commit error when it granted Defendant’s motion to

dismiss based upon the running of the statute of limitations when Plaintiff

commenced an action within three (3) years of damage to property against

Defendant, a design professional with whom it was not in privity?

Yes, the Trial Court erred because the evidence and allegations in the

Complaint established that Defendant was not in privity with Plaintiff.

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3. Did the Trial Court commit error when it denied Plaintiff’s motion to settle the

record on appeal, when the proposed record on appeal contained all of the

requisite items pursuant to the CPLR and clearly noted that any memorandum

of law was included for determining preservation of issues, only?

Yes, the Trial Court erred because it failed to consider the plain language of

the CPLR and Statewide Appellate Rules.

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 PRELIMINARY STATEMENT

Plaintiff appeals from two Orders dated December 3, 2018 (R18-19) and April

22, 2019 (R4-6) which granted Defendant’s motion to dismiss made pursuant to

CPLR §214(6) and CPLR §3211(a)(5) (R21-22). This appeal primarily requires the

Court to interpret and harmonize CPLR §214(6) and the subsequently enacted CPLR

§214-d. The Trial Court below, after essentially reconsidering its own ruling, sua

sponte, adopted the arguments of Defendant/Respondent Louis Design Solutions

Architecture LLC (“Louis Design”) and dismissed the Complaint as untimely, based

on CPLR §214(6), while ignoring CPLR §214(4) and the clear provisions in CPLR

§214-d. The applicable facts are largely undisputed.

Plaintiff also appeals the Order dated April 22, 2019 (R11-13), which denied

its motion to settle the record on appeal. The denial of the motion to settle the record

on appeal prevented the Plaintiff from presenting the Court with all of the required

items pursuant to CPLR §5526 and the Statewide Appellate Rules. By appealing

such Order, Plaintiff has now provided the Court with all items necessary to review

the underlying Orders granting Defendant’s motion to dismiss.

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 STATEMENT OF FACTS

The Town of West Seneca, New York (the “Town” or “Plaintiff”) retained

Nussbaumer & Clark, Inc. (“NCI”) to provide professional engineering services for

the design and construction of the Charles E. Burchfield Art & Nature Center (the

“Burchfield Center” or “Project”) (R31, 38). NCI retained Defendant/Respondent

Louis Design as a sub-consultant on the Project (R31, ¶7, R38). Louis Design agrees

that it was not in privity with the Town, and that it served as a sub-consultant to NCI

on the Project (R91). During the course of the Project, Louis Design provided NCI

with professional architectural design services (R100).

Louis Design was involved with the design of the grade and ground elevation

surrounding the Burchfield Center (R100). Louis Design was also involved with

providing professional design or consulting services with respect to the grade and

ground elevation surrounding the Burchfield Center (Id.). The Town later discovered

that issues relating to the grade and ground elevation caused property damage to the

Burchfield Center (R73-74, 100-102).

In or about June 1999, the Town received design drawings, plans, and

specifications for the Burchfield Center (R32, ¶11, R44-69). Construction of the

Burchfield Center commenced in or about July 1999 (R32, ¶13). On March 11, 2002,

the Town certified that the Burchfield Center was complete (Id. at ¶14).

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 In January 2017, the Town first noticed property damage to the Burchfield

Center (R32, ¶15, R100). The Town retained Building Science Services, LLC, who

prepared a report detailing how the original design failure of the Burchfield Center

caused the property damage (R33, ¶18, R101). From this report, the Town learned

that the setting of the grade and ground elevation around the Burchfield Center (which

was included in the Louis Design scope of work) caused the exterior wood wall

surfaces to be exposed to periodic conditions of moisture for years, and that exposure

caused the Burchfield Center to experience various levels of property damage

including, but not limited to, wall settlement, wood rot, and differential settlement of

the stud walls (R33, ¶19-20, R101-102).

On September 30, 2017, the Town served upon Louis Design a Notice of Claim

pursuant to CPLR § 214-d (R95-97). The Town subsequently filed the Complaint on

July 12, 2018, and alleged full compliance with CPLR §214-d (R33, ¶23). The basis

of the Town’s claim is that Louis Design negligently performed professional design

services for the construction of the Project, and that as a direct and proximate result

of Louis Design’s negligence, the Burchfield Center suffered direct property damage

(R32, ¶15-17, R33, ¶20, R34, R35, ¶32).

Louis Design filed a motion to dismiss pursuant to CPLR §3211(a)(5) and

§214(6) (R21-22). The Court granted Louis Design’s motion to dismiss on December

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3, 2018 (R18-19). The Court did not issue a written decision. Instead, months later,

the Court amended its December 3, 2018 Order, sua sponte, to reiterate the granting

of the motion to dismiss, though this time basing its decision on the statute of

limitations (R4-6), apparently adopting the argument advanced by Louis Design that

the Town’s Complaint was untimely pursuant to CPLR §214(6).

The December 3, 2018 Order and Judgment granting the motion to dismiss was

served on the Town via Notice of Entry on December 7, 2018 (R20). The Town duly

filed and served its Notice of Appeal of the December 3, 2018 Order and Judgment

on December 20, 2018 (R15-17).

The April 22, 2019 Order and Judgment reiterating the granting of the motion

to dismiss was served on the Town via Notice of Entry on April 30, 2019 (R7). The

Town duly filed and service its Notice of Appeal of the April 22, 2019 Order and

Judgment on May 7, 2019 (R1-3).

The April 22, 2019 Order denying the motion to settle the record was served

on the Town via Notice of Entry on April 30, 2019 (R14). The Town duly filed and

served its Notice of Appeal of the April 22, 2019 Order on May 3, 2019 (R8-10).

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 ARGUMENT

POINT I

THE TOWN TIMELY COMMENCED ITS ACTION AGAINST LOUIS

DESIGN

The Town’s Complaint is timely and proper because it fits squarely within the

confines of CPLR §§214(4) and 214-d. The evidence establishes that the Town was

not in privity with Louis Design, the Complaint alleges that the Town seeks recovery

for property damages negligently caused by Louis Design, and the Town filed its

Complaint within three (3) years of the date of property damage. Therefore, the Court

should not have dismissed the Complaint based on the running of the inapposite

CPLR §214(6) statute of limitations.

Louis Design filed a pre-answer motion to dismiss based on CPLR §3211(a)(5)

and §214(6) (R21-22). On a motion to dismiss a complaint pursuant to CPLR

§3211(a)(5), the moving defendant must establish, prima facie, “that the time in

which to commence the action has expired ... The burden then shifts to the plaintiff

to raise a question of fact as to whether the statute of limitations is tolled or otherwise

inapplicable, or whether the plaintiff actually commenced the action within the

applicable statute of limitations period.” (Coleman v Wells Fargo & Co., 125 AD3d

716, 716 [2d Dep’t 2015]). As set forth in more detail below, the Town satisfied its

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burden and at minimum, raised a question of fact as to whether it commenced its

action within the applicable statute of limitations period.

In reviewing the motion to dismiss, the Trial Court was also required to “accept

the facts as alleged in [the Town’s Complaint] as true,” accord the Town “the benefit

of every possible favorable inference,” and “determine only whether the facts as

alleged fit within any cognizable legal theory.” (Collins v Davirro, 160 AD3d 1343,

1343 [4th Dep’t 2018]). The Trial Court failed to adhere to this standard, disregarded

the allegations in the Complaint, and, by granting the motion to dismiss, as argued by

Louis Design, ignored CPLR §214(4) and eviscerated CPLR §214-d.

a. CPLR §§214-d and 214(6), enacted within one month of each other, apply
to two different types of claims.

CPLR §§214-d and 214(6), both enacted in the same legislative session in

1996, relate to two distinct statutes of limitation applicable to two different situations.

On one hand, CPLR §214(6) applies to claims for malpractice between a professional

and its client, or otherwise for parties who are in privity. On the other hand, CPLR

§214-d applies to claims for negligence causing personal injury or property damage

between parties not in privity, that are otherwise governed by CPLR §214(4).

The Trial Court erred in granting the motion to dismiss because the Town’s

claim against Louis Design falls directly into the situation to which the Legislature

intended CPLR §214-d to apply. CPLR §§214-d and 214(6) describe two particular

-8-
and distinct situations. The Trial Court failed to differentiate the two situations, and

erroneously applied the CPLR §214(6) “malpractice” rule to an action in negligence

seeking property damage between parties not in privity that is governed by CPLR

§214(4), and ignored entirely CPLR §214-d.

The starting point for any court in interpreting CPLR §214(6) and CPLR

§214-d must be the “language itself, giving effect to the plain meaning thereof,” and

“[w]here the statutory language is clear and unambiguous, the court should construe

it so as to give effect to the plain meaning of the words used.” (Commonwealth of

the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013]

citing Majewski v Broadalpin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]

and Patrolmen’s Benevolent Assn v City of New York, 41 NY2d 205, 208 [1976]

[other citation omitted]).

When engaging in interpretation, the use of different terms and various parts

of a statute or rule makes it “reasonable to assume that a distinction between them is

intended.” (Commonwealth of the N. Mariana Is., 21 NY3d at 63 [2013]; [citing

Matter of Albano v Kirby, 36 NY2d 526, 530 [1975]). Such a distinction cannot be

simply disregarded, and the Court of Appeals has directed that, in connection with

interpreting conflicting CPLR provisions, a Court “is required to construe the entire

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CPLR in a manner that harmonizes these variations….” (Commonwealth of the N.

Mariana Is., 21 NY3d at 63).

Here, harmonizing CPLR §214(6) with §214-d is aided by the omission in the

subsequently enacted §214-d of the term “malpractice.” (See infra). It is long-settled

law that where a statute describes particular situations in which it is to apply, there is

an irrefutable inference that must be drawn that where the Legislature omitted

language or otherwise did not include it, such language was intended to be omitted

or excluded (See Patrolmen’s Benevolent Assn., 41 NY2d at 208-209; see also Gress

v Brown, 20 NY3d 957, 961 [2012]; Goodwin v Pretorious, 105 AD3d 207 [4th Dep’t

2013]). It cannot be coincidence that CPLR §214(6) was specifically enacted to apply

to malpractice claims, while the subsequently enacted CPLR §214-d omits

“malpractice” to separately apply to negligent professional performance, conduct, or

omissions causing personal injury or property damage (See infra).

1. CPLR §214(6) applies to “malpractice” claims between a professional and

its client.

The legislature amended CPLR §214(6) on September 4, 1996 to provide a

limitation on malpractice actions between parties in privity regardless of whether the

underlying theory was based in contract or in tort (L. 1996, ch 623, §1). CPLR

§214(6) provides for a three-year statute of limitations for:

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 An action to recover damages for malpractice, other than medical,
dental, or podiatric malpractice, regardless of whether the underlying
theory is based in contract or in tort.

In the context of CPLR §214(6), the Court of Appeals has definitively

instructed that the threshold issue of what “malpractice” means is premised on the

“professional misfeasance toward one’s client….” (See Chase Scientific Research,

Inc. v NIA Group, Inc., 96 NY2d 20, 24 [2001]; Livingston v En-Consultants, Inc.,

115 AD3d 650 [2d Dep’t 2014]; see also Cubito v Kreisberg, 69 AD2d 738, 742 [2d

Dep’t 1979], aff’d., 51 NY2d 900 [1980] [malpractice in the statutory sense describes

the negligence of a professional toward the person for whom he rendered his

service]). Malpractice is “the negligence of a professional toward a person for whom

a service is rendered … and an action for malpractice springs from the correlative

rights and duties assumed by the parties through the relationship.” (Mamdough v

Leger, 34 Misc 3d 1212[A] [Sup Ct, Kings Cty, December 23, 2011] [citations

omitted]). Thus, for the three-year statute of limitations under CPLR §214(6) to

apply, the action must be one brought by the client with whom the professional is in

privity (see 1650 Forest Ave. Corp. v Farrell Fritz, P.C., 17 Misc 3d 132[A] [2d

Dep’t 2007] [“CPLR 214(6) applies only to actions seeking damage for malpractice,

which is the negligence of a professional toward the person for whom he or she

renders a service …”).

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 As succinctly explained by the Appellate Division, First Department, CPLR

§214(6) was amended in order to repeal a line of Court of Appeal’s decisions in which

the 6-year statute of limitations for breach of contract was applied regardless of

whether a professional malpractice claim was verbalized as in tort or for malpractice,

because the relationship “arose out of the contractual relationship of the parties,” and

because “absent the contract between them, no services would have been performed

and there would have been no claims.” (In re Kliment, 3 AD3d 143, 144 [1st Dep’t

2004], citing Santulli v Englert, Reilly & McHugh, P.C., 78 NY2d 700 [1992] [and

further recognizing that amended §214(6) overrules Santulli and similar cases]).

Thus, there can be no doubt that the amendment to §214(6) applied to

malpractice claims arising out of a privity of contract relationship, not to those outside

the contractual chain.

In this case, Louis Design does not have a contract with the Town to perform

work on the Project (R38, 91, 100). Therefore, CPLR §214(6) cannot apply.

2. CPLR §214-d applies to negligence claims between parties not in privity.

CPLR §214-d, enacted less than one month after the amendment to CPLR

§214(6), specifically addresses situations where the actions or omissions of a design

professional cause harm to a party outside the client/professional relationship. CPLR

§214-d does not create a statute of limitations, but rather provides additional notice

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and procedural safeguards for design professionals facing claims made by parties

outside the contractual relationship within three (3) years of injury or property

damage, but ten (10) or more years post-performance of the design services. The

limitations period for negligently caused property damage is governed by CPLR

§214(4), with accrual triggered at the date of injury to property.

The Governor signed legislation enacting CPLR §214-d into law on October

1, 1996 (L. 1996, c. 682, §1). CPLR §214-d applies to a claim for personal injury,

wrongful death, or property damage in connection with an act or omission by an

architect, occurring more than 10 years prior to the date of the claim:

Any person asserting a claim for personal injury, wrongful death or

property damage . . . against a licensed architect, engineer, land surveyor
or landscape architect or against a partnership, professional corporation
or limited liability company lawfully practicing architecture,
engineering, land surveying or landscape architecture which is based
upon the professional performance, conduct or omission by such
licensed architect, engineer, land surveyor or landscape architect or
such firm occurring more than ten (10) years prior to the date of such
claim, shall give written notice of such claim to each such architect,
engineer, land surveyor or landscape architect or such firm at least
ninety days before the commencement of any action or proceeding
against such licensed architect, engineer, land surveyor or landscape
architect or such firm including any cross or third-party action or
claim.

CPLR §214-d (1).

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 The plain language of CPLR §214-d confirms that a design professional is not

always subject to the statute of limitations found in CPLR §214(6). CPLR §214-d

applies to situations based on wrongful conduct by the professional in rendering his

services that result in personal injury or property damage to a party outside the

contractual relationship, which are classified as negligence (Cubito, 69 AD2d at 742

[1979]). In such situations, the CPLR §214(4) limitations period runs from the date

of the injury (Id. at 744). Here, accrual was as of January 2017, when the claim

became enforceable.

The Trial Court overlooked the plain language of CPLR §214-d and failed to

apply it, in conjunction with CPLR §214(4), to the facts of this case.

b. Reconciling CPLR § 214-d and CPLR § 214(6) establishes that the Town’s
claim is valid and timely.

Louis Design argued, and the Trial Court apparently agreed, that the Town was

attempting to extend the §214(6) malpractice statute of limitations. Properly

construed, §214-d extends nothing, but when applied to claims governed by CPLR

§214(4), offers notice and procedural protections to design professionals sued by non-

clients in negligence. In this case, the allegations in the Town’s Complaint and the

evidence attached thereto shows that the Town set forth a viable cause of action

against Louis Design, because the parties were not in privity and because the Town

sought property damage due to Louis Design’s negligence.

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 Louis Design was a sub-consultant to NCI on the Project (R31, ¶7, R91, 100).

The Town was not Louis Design’s client (R100). Louis Design does not dispute this

fact, and confirmed that it was NCI’s sub-consultant (R91). Further, NCI, not Louis

Design, undertook to provide the Town with design documents to be used in bidding

(R42). As such, there was no privity between Louis Design and the Town. This key

distinction renders Louis Design’s presumption that accrual was at Project

completion inoperative. In contrast to accrual where the claim stems from a

contractual or professional relationship between the parties (Gordon v Condominium,

35 Misc 3d 1214(A) at *9 [Sup Ct, New York Cty, April 16, 2012] [citing Cubito, 69

AD2d at 738] [other citations omitted]), in the absence of privity, accrual is on the

date of injury (Gordon, at *9 [other citations omitted]).

The Town alleged a proper claim for property damage, which is encompassed

by CPLR§§ 214(4) and 214-d. Specifically, the Town alleged that it noticed and

suffered “unusual building damage,” “structural deterioration,” and “property

damage,” including, but not limited to, differential wall settlement near window

locations, wood rot at the bottom of the walls, and differential settlement of the stud

walls (R32, ¶15-16). The Town also alleged that as a direct and proximate result of

Louis Design’s negligent performance of design services for the Burchfield Center,

the Town suffered “direct property damages to the Burchfield Center” (R35, ¶32).

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 The Town, being a third-party outside of the contract between NCI and Louis

Design, first noticed property damage in January 2017, and timely filed its Complaint

in July, 2018, well within the applicable three (3) year statute of limitations, but more

than ten (10) years after Louis Design completed its work, triggering the additional

procedures under CPLR §214-d.

The position advanced by the Town is supported by Courts that have

interpreted statute of limitations issues against design professionals. In Belunes v

Minskoff Grant Realty & Management Corp., (278 AD2d 143 [1st Dep’t 2000]), the

Court confirmed that a personal injury action against a design professional by a party

who did not retain the architect accrues on the date of injury. Even though Belunes

dealt with a personal injury action, the clear language of CPLR §214-d also extends

to negligently caused property damage claims. Therefore, the same doctrine for

accrual applies against a design professional by a party not in privity. Accrual is on

the date of injury (Ville de Port, Inc. v Hess Corp., 34 Misc 3d 1214(A) [Sup Ct Kings

Cty, January 18, 2012]; citing Manhattanville College v James John Romeo

Consulting Eng’r, P.C., 5 AD3d 637 [2d Dep’t 2004]).

Courts have also noted that for the purposes of determining the accrual date of

the statute of limitations, the owner who retained the allegedly negligent party has

rights differing from a party outside of that relationship who is injured as a result of

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the other’s negligence (See Gordon, 35 Misc 3d 1214(A) at *9 [other citation

omitted]). In a situation where a claim for negligent construction is alleged by a party

who had no contractual relationship with the offending party at the time of the

negligent actions, that date accrues on the date of injury, which is the date when the

claim becomes enforceable (See Id. [citing cases]).

When the Court granted the motion to dismiss, it effectively adopted the

position advanced by Louis Design that an owner (despite lack of privity) may never

utilize CPLR §214-d to extend the time to sue (R27, ¶10, “Case law is clear that

§214-d cannot be used by an owner to extend the three-year statute of limitations.”).

That position of Louis Design, as adopted by the Court, misses the point. It is not

whether CPLR §214-d “extends” the three-year statute of limitations within §214(6),

rather, the point is that §214-d relates to an entirely different limitations period not

controlled by the “malpractice” timing in §214(6). The shortened “malpractice”

timing cannot apply where privity is absent and the claim is brought by a third-party,

such as the Town. The plain terms of CPLR §214-d provide that the Town may seek

the property damages it began to incur in 2017.

That Louis Design argument obscures the issue, and vitiates both §214(4) and

§214-d. Neither the Courts nor the Legislature have adopted this position. In fact, the

Cubito Court concluded that such a position would be inequitable, as it would be

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unreasonable to apply the statute of limitations to extinguish a claim against the

defendant architect for his negligence prior to the time that the injury had been

sustained or that an action could have been brought to recover damages for the injury

(Cubito, 69 AD2d at 744 [1979]). The Trial Court’s granting of the motion to dismiss

did exactly what the Court in Cubito said was unreasonable.

CPLR §214(6) gives design professionals protection by imposing a three-year

statute of limitations for malpractice claims brought by their clients. The client is

subject to a shortened period of limitations because it is in the best position to know

whether the design professional negligently performed its services. Realizing that

parties outside the contractual relationship (i.e. those not in privity) could still make

claims against design professionals many years after the completion of their work on

the project, the Legislature enacted CPLR §214-d, less than one month after

amending §214(6), to give design professionals other protection by requiring parties

not in privity to provide advance notice of claims that accrued beyond 10-years post-

service, and by imposing a heightened pleading requirement. What neither CPLR

§214(6) or CPLR §214-d did was completely prohibit a party outside the contractual

relationship from bringing a claim for negligently caused property damage against a

party with whom it was not in privity.

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 If we were to adopt the position of the Trial Court below, the mandates of

CPLR §214-d relating to property damage claims 10-plus years post completion

would have no meaning, because the statute of limitations would have expired three

(3) years post completion. That is clearly not the intended effect of CPLR §214-d,

and is contrary to established case law (see Supra).

The Town had no contract with Louis Design and commenced its action

seeking recovery for property damage to the Burchfield Center within three (3) years

of the date of injury to property. The Legislature contemplated claims like the

Town’s to be subject to CPLR §214-d; it did not prohibit them. It was error for the

Court to dismiss Plaintiff’s complaint on the basis that the statute of limitations had

expired. Therefore, the December 3, 2018 and April 22, 2019 Orders should be

reversed (R18-19, R4-6).

POINT II

THE TOWN SATISFIED THE HEIGHTENED STANDARD

UNDER CPLR §3211(H)

Though not expressly adopted by the Court in the Orders granting the motion

to dismiss, the review of conditions prepared by Building Science Services, LLC

(the “Report”) (R70-85, R116-131), the documentary evidence, and the allegations

contained in the Complaint demonstrate that the Town satisfied its burden under

CPLR §3211(h).

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 On a motion to dismiss a complaint pursuant to CPLR §3211(h), a Court

reviewing the sufficiency of a complaint must determine whether the claim alleged

is supported by such relevant proof as a reasonable mind may accept as adequate to

support a conclusion or ultimate fact (Castle Village Owners Corp. v Greater New

York Mutual Insurance Co., 868 NYS2d 189 [1st Dep’t 2008]). The substantial

basis/substantial evidence standard is less than a “preponderance of the evidence

standard.” (See 300 Gramatan Avenue Associates v State Division of Human

Rights, 45 NY2d 176 [1978]). A complaint that alleges with specificity and in

detail as to how the design professional departed from its standard of care and how

its negligent conduct was a proximate cause of the injury or property damage will

survive a motion to dismiss pursuant to CPLR §3211(h) (See Castle Village Owners

Corp., 868 NYS2d at 192-93; Kenny v Turner Constr. Co., 107 AD3d 412, 413-14

[1st Dep’t 2003]). The Town did exactly what was required to meet its burden

under CPLR §3211(h).

Here, the Town alleged that Louis Design was involved in preparing

construction drawings for the Burchfield Center as a sub-consultant of NCI (R31).

The Town also alleged that the original design of the Burchfield Center contained

improper and poorly coordinated specifications as to where the ground elevations

were intended to be, and such improperly designed specifications led to wood wall

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framing sitting approximately 6-7 inches below the Burchfield Center’s floors lap

elevation, 2-3 inches below the surrounding earth grade, and 8-9 below grade at

door entry and walkway perimeter areas (R33, ¶19). Drawings prepared by Louis

Design were attached to the Complaint, and portions of such drawings were

reviewed by Building Science Services, LLC (R33, 44-69, 70-85, and 116-121).

The Report confirms that the negligent setting of the grade and ground

elevation caused the walls of the Burchfield Center to be exposed to periodic

conditions of moisture, which in turn, led to rooting wood and a process of vertical

collapse of the individual wood studs, among other property damage (R73-74). The

Town alleged the same (R33, ¶19-20), and that as a direct and proximate result of

Louis Design’s negligent actions, the Burchfield Center suffered direct property

damage (R32, ¶15-17, R33, ¶20, R34, R35, ¶32).

This evidence and the Town’s allegations establish relevant proof as a

reasonable mind may accept as adequate to support a conclusion or ultimate fact

that Louis Design’s negligent conduct caused property damage to the Burchfield

Center.

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 POINT III

THE COURT IMPROPERLY EXCLUDED THE TRANSCRIPT AND

MEMORANDA OF LAW FROM THE RECORD ON APPEAL

The Town, as Appellant, has the burden of compiling a full and complete

record on appeal. The Town complied with CPLR §5526 and Rule 1250.7(b)(4) of

the Statewide “Practice Rules of the Appellate Division” to include the transcript of

the oral argument on the motion to dismiss (R307-328). It also included the

memoranda of law solely for the purposes of determining preservation of issues

(R224, 272, 292). In denying the Town’s motion to settle the record on appeal, the

Trial Court disregarded the plain language of the CPLR, the Statewide “Practice

Rules of the Appellate Division,” and case law.

The Town’s appeal of the Order denying the motion to settle the record (R15-

16) permits it to include the transcript and memoranda of law so that the Court can

conduct meaningful review of the Orders granting Defendant/Respondent’s motion

to dismiss. To the extent the Court requires an explanation for the Town’s inclusion

of such documents; the Town offers the following, below.

Pursuant to CPLR § 5526, the record on appeal must contain certain items:

The record on appeal from a final judgment shall consist of the notice of
appeal, the judgment-roll, the corrected transcript … The record on
appeal from an interlocutory judgment or any order shall consist of the
notice of appeal, the judgment or order appealed from, the transcript, if

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 any, the papers and other exhibits upon which the judgment or order was
founded and any opinions in the case.

Rule 1250.7(b)(4) of the Statewide “Practice Rules of the Appellate Division”

describes the contents of the record on appeal and contains similar requirements:

The reproduced full record shall be bound separately from the brief, shall
include the items set forth in CPLR § 5526, and shall include in the
following order so much of the following items as shall be applicable to
the particular cause: … The notice of appeal or order of transfer,
judgment or order appealed from, judgment roll, corrected transcript …

This Court has previously noted the necessity of the inclusion of the transcript

in multiple situations besides an appeal from a trial or hearing (See Onewest Bank,

FSB v Spencer, 145 AD3d 1488 [4th Dep’t 2016]; see Mosey v County of Erie, 148

AD3d 1572 [4th Dep’t 2017]; Kai Lin v Strong Health, 82 AD3d 1585 [Appeal 1]

[4th Dep’t 2011][holding that the Supreme Court erred in failing to include a

transcript of oral argument on the motion to compel discovery and the cross-motion

for summary judgment]).

Other Appellate Divisions have agreed with the importance of including a

transcript of the proceedings below in the record on appeal (Corina v Boys & Girls

Club of Schenectady, Inc., 82 AD3d 1477, n.1 [3d Dep’t 2011] [noting that when a

written decision by the Supreme Court does not exist, “the parties are encouraged to

obtain and provide us with a transcript of any oral decision.”]; see also Matter of

Christopher RR v St. Lawrence County Dept. of Social Servs. 113 AD3d 899 [3d

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Dep’t 2014] [holding that the record on appeal was inadequate to enable an informed

decision on the merits because the transcript of the appearance before the court where

a motion to dismiss was heard and decided upon was not included and the court’s

order for dismissing the petition and that it articulated no basis for such dismissal]).

Based on the above, the Court erred in precluding the Town from

including in the record on appeal the transcript and memoranda of law from

the motion to dismiss.

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 CONCLUSION

For all the foregoing reasons, the Orders granting the motion to dismiss

should be reversed, because the Town timely commenced its claim for property

damage within three (3) years of the injury to property against a design professional

with whom it was not in privity. The Order denying the motion to settle the record

on appeal should also be reversed. The Town respectfully requests that its appeal

be granted and that the Court award further relief that it deems just and proper.

fully Submitted,

ERNSTRO DRESTE, LLP

John W. Dreste, Esq.

Matthew D. Holmes, Esq.
Attorneys for Plaintiff/Appellant
925 Clinton Square
Rochester, New York 14604
Telephone: (585) 473-3100
mholmes@ed-llp.com

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 PRINTING SPECIFICATIONS STATEMENT

I hereby certify pursuant to 22 NYCRR 1250.8(j) that the foregoing brief was

prepared on a computer using Microsoft Word.

Type. A proportionally spaced typeface was used, as follows:

Name of typeface: Times New Roman

Point size: 14 pt
Lind spacing: Double

Word Count. The total number of words in this brief, inclusive of point headings

and footnotes and exclusive of pages containing the table of contents, table of

citations, proof of service and this statement is 5,295.

Dated: August 14, 2019

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