Charlotte Lake River Associates v. American Insurance

Majority

p. 248

Charlotte Lake River Associates, a Limited Partnership, et al., Plaintiffs, v American Insurance Company et al., Defendants.

Supreme Court, Monroe County,

December 4, 1978

APPEARANCES OF COUNSEL

Sugarman, Wallace, Manheim & Schoenwald (Charles M. Manheim and James G. Stevens, Jr., of counsel), for Northrup, Kaelber & Kopf, defendant. Dahan & Appel (Paul H. Appel of counsel), for plaintiffs. McGrath, Meyer, Lieberman & Lipp for American Insurance Company, defendant. Harter, Secrest & Emery for Union Commerce Bank, defendant.

OPINION OF THE COURT

Defendants Northrup, Kaelber and Kopf (NKK) move for a protective order striking the interrogatories directed to them by plaintiffs, and plaintiffs cross-move for sanctions upon NKK for their willful failure to answer those interrogatories to which they have not specifically objected.

The action arises out of the construction of a residential rental housing project in Rochester, New York, known as Charlotte Lake River Houses. The complaint sets forth five

p. 249

causes of action. The third cause of action, directed against NKK, the architects of the project, essentially sounds in malpractice and negligence concerning the construction and supervision of the project by NKK, and not for any breach of contract, as it purports to do.

CPLR 3130 limits the use of interrogatories to actions "other than in an action to recover damages * * * resulting from negligence”. It has been held that negligence is the basis of a malpractice action, which is tortious in nature, and predicated upon a failure to exercise requisite skill (Fiorentino v Jaques, 41 Misc 2d 972 ; see, also, Allen v Minskoff, 38 NY2d 506 ).

Therefore, NKK’s motion striking the interrogatories directed to them is granted, and plaintiffs cross motion is denied.

Cases cited

Fiorentino v. Jaques 41 Misc 2d 972 N.Y. Sup. Ct. 1964-01-17 p. 249
Allen v. Minskoff 38 NY2d 506 N.Y. 1976-01-08 p. 249