Académique Documents
Professionnel Documents
Culture Documents
To be Argued by:
MATTHEW D. HOLMES
(Time Requested: 10 Minutes)
– against –
Defendant-Respondent.
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
POINT II
The Town Satisfied the Heightened Standard Under CPLR §3211(H) ..... 19
POINT III
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CONCLUSION ........................................................................................................ 25
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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
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
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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
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
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QUESTIONS PRESENTED
1. Did the Trial Court commit error in dismissing the Complaint when it
§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)
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
Yes, the Trial Court erred because the evidence and allegations in the
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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
Yes, the Trial Court erred because it failed to consider the plain language of
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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
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
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
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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
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
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
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
including, but not limited to, wall settlement, wood rot, and differential settlement of
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
§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 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
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
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’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
§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
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
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
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
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and distinct situations. The Trial Court failed to differentiate the two situations, and
seeking property damage between parties not in privity that is governed by CPLR
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
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]
When engaging in interpretation, the use of different terms and various parts
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.
Here, harmonizing CPLR §214(6) with §214-d is aided by the omission in the
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
underlying theory was based in contract or in tort (L. 1996, ch 623, §1). CPLR
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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.
instructed that the threshold issue of what “malpractice” means is premised on the
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
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
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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
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]).
malpractice claims arising out of a privity of contract relationship, not to those outside
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.
CPLR §214-d, enacted less than one month after the amendment to 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
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,
architect, occurring more than 10 years prior to the date of the claim:
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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
services that result in personal injury or property damage to a party outside the
[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
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
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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
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
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
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
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
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
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
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
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
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
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
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
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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
statute of limitations for malpractice claims brought by their clients. The client is
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
not in privity to provide advance notice of claims that accrued beyond 10-years post-
§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
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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,
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
POINT II
Though not expressly adopted by the Court in the Orders granting the motion
(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
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
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
Here, the Town alleged that Louis Design was involved in preparing
The Town also alleged that the original design of the Burchfield Center contained
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
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
that Louis Design’s negligent conduct caused property damage to the Burchfield
Center.
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POINT III
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
(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
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
to dismiss. To the extent the Court requires an explanation for the Town’s inclusion
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.
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
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
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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,
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PRINTING SPECIFICATIONS STATEMENT
I hereby certify pursuant to 22 NYCRR 1250.8(j) that the foregoing brief was
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
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