Witt v. Merrill

[999] Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered May 24, 2004. The order granted plaintiffs motion for leave to reargue. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff appeals from an order granting her motion for leave to reargue and, upon reargument, adhering to the prior decision granting the motion of William H. Merrill, Jr. (defendant) for summary judgment dismissing the complaint against him as time-barred (see CPLR 214 [4]). Plaintiff commenced this action alleging, inter alia, that defendant, an engineer, was negligent in his inspection of the soil on which plaintiff ultimately built her residence and that defendant should have known that the soil was unsuitable for the construction of her residence. Contrary to the contention of plaintiff, her cause of action against defendant accrued when defendant completed his work, i.e., when he conducted his soil study and issued his report to plaintiff in 1993, not in January 2003 when plaintiff discovered the damage to the foundation of her residence (see Gelwicks v Campbell, 257 AD2d 601, 602 [1999]; Johnson v Marianetti, 202 AD2d 970, 970-971 [1994]). Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.