SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
154
CA 14-01237
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.
NOTHNAGLE HOME SECURITIES CORP.,
PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
BRUCKNER, TILLET, ROSSI, CAHILL & ASSOCIATES
AND PATRICK W. CAHILL, DEFENDANTS-APPELLANTS.
LACY KATZEN LLP, ROCHESTER (JOHN T. REFERMAT OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.
PHETERSON SPATORICO LLP, ROCHESTER (DERRICK A. SPATORICO OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.
Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Matthew A. Rosenbaum, J.), entered October 22,
2013. The order and judgment, insofar as appealed from, denied in
part the motion of defendants to dismiss the complaint.
It is hereby ORDERED that the order and judgment insofar as
appealed from is unanimously reversed on the law without costs, the
motion is granted in its entirety and the complaint is dismissed.
Memorandum: Plaintiff commenced this action alleging, inter
alia, that defendants negligently appraised a parcel of real property
based upon their misclassification of the structure thereon as a
modular home rather than a manufactured home, and plaintiff also
asserted a breach of contract cause of action. Supreme Court granted
in part defendants’ motion to dismiss the complaint, dismissing only
the breach of contract cause of action. We agree with defendants that
the court should have granted the motion in its entirety inasmuch as
the negligence cause of action is time-barred. Plaintiff did not
commence this action until more than six years after defendants
provided plaintiff with an “FHA appraisal” of the real property,
asserting in relevant part that, as a result of the misclassification,
it was required to indemnify the United States Department of Housing
and Urban Development (HUD) for the loss HUD suffered when the
purchaser of that property defaulted on a federally insured loan that
plaintiff made to the purchaser thereof in reliance upon defendants’
appraisal.
We note as a preliminary matter that we agree with defendants
that the applicable limitations period for the negligence cause of
action is three years (see CPLR 214 [4], [6]; see generally Cator v
-2- 154
CA 14-01237
Bauman, 39 AD3d 1263, 1263; Locafrance U.S. Corp. v Daley-Hodkin
Corp., 60 AD2d 804, 805), and we further agree with defendants that
the negligence cause of action accrued on August 19, 2004, the day on
which plaintiff received defendants’ appraisal containing the
misclassification. “In most cases, . . . accrual time is measured
from the day an actionable injury occurs, ‘even if the aggrieved party
is then ignorant of the wrong or injury’ ” (McCoy v Feinman, 99 NY2d
295, 301, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541; see
generally Kronos, Inc. v AVX Corp., 81 NY2d 90, 94; City Store Gates
Mfg. Corp. v Empire Rolling Steel Gates Corp., 113 AD3d 718, 719).
Here, plaintiff “reasonably relie[d] on [defendants’] skill and advice
[on that date] and, as a consequence of such reliance, [became]
liable” for indemnifying HUD (Ackerman, 84 NY2d at 541; see Locafrance
U.S. Corp., 60 AD2d at 805). Inasmuch as plaintiff commenced this
action more than six years later, the negligence cause of action is
time-barred (see Ackerman, 84 NY2d at 541; Locafrance U.S. Corp., 60
AD2d at 805). In light of our determination, we do not address
defendants’ remaining contentions.
Entered: February 13, 2015 Frances E. Cafarell
Clerk of the Court