Opinion
April 18, 1994
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the order dated May 12, 1992, is affirmed insofar as appealed from, and the order dated July 9, 1992, is affirmed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The Supreme Court properly granted the plaintiff's cross motion to strike the defendant's affirmative defenses dealing with the Statute of Limitations. A cause of action against an architect accrues when his or her professional relationship with the owner ends, and when the architect is contractually obligated to conduct inspections to determine completion dates and issue a final certificate, a cause of action against the architect does not accrue until the final certificate of payment is issued (see, Board of Educ. v Celotex Corp., 88 A.D.2d 713, 714, affd 58 N.Y.2d 684; Matter of Kohn Pederson Fox Assocs. [FDIC], 189 A.D.2d 557, 558). "[I]ssuance of that certificate represents a significant contractual right of the owner and concomitant obligation of the architect" (State of New York v Lundin, 60 N.Y.2d 987, 989). In this case, the contract between the plaintiff and the defendant required the defendant to issue a certificate of final payment, and the defendant submitted no evidence that it did so.
Even if we were to find that the defendant was correct in asserting that the Statute of Limitations started running on March 31, 1986, when it claims that the underlying project was "substantially complete", the present action was still timely. Since the plaintiff and the defendant entered into two separate agreements which tolled the Statute of Limitations for more than five months, the six-year Statute of Limitations applicable to the plaintiff's claim would not have expired until after April 10, 1992, when the defendant was served.
We also find that the court properly denied the defendant's motion to dismiss the complaint based on lack of personal jurisdiction. CPLR 310 (d), which became effective July 15, 1991, states, inter alia, that "[p]ersonal service on such partnership may also be made by delivering the summons to any other agent or employee of the partnership authorized by appointment to receive service". This provision overrules Cooney v East Nassau Med. Group ( 136 A.D.2d 392), upon which the defendant relies, and "now treats partnerships and corporations in a similar fashion" (Alexander, 1993 Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C310:4, 1994 Pocket Part, at 83). The defendant's argument that Fashion Page v Zurich Ins. Co. ( 50 N.Y.2d 265), is not applicable is without merit since "[c]ases that have interpreted 'agent by appointment' in connection with service on corporations should provide relevant precedents" (Alexander, 1993 Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C310:4, 1994 Pocket Part, at 83).
Here, we find that service should be sustained because the process server's reliance on the representations of the employee claiming authority to accept service was reasonable, and "service [was] made in a manner which, objectively viewed, [was] calculated to give the [partnership] fair notice" (Fashion Page v Zurich Ins. Co., supra, at 272-273). Thompson, J.P., Rosenblatt, Ritter and Santucci, JJ., concur.