Summary
holding that, under malpractice law, a “ ‘profession’ is an occupation generally associated with long-term educational requirements leading to an advanced degree, licensure evidencing qualifications met prior to engaging in the occupation, and control of the occupation by adherence to standards of conduct, ethics and malpractice liability” and that the field has “traditionally been limited to such ‘learned professions' as law, accountancy, architecture, and engineering”
Summary of this case from David Lerner Assocs., Inc. v. Phila. Indem. Ins. Co.Opinion
September 16, 1999
Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered March 2, 1998, which, to the extent appealed from, granted third-party defendant Essential Coverage Corp.'s motion for summary judgment dismissing this particular third-party complaint as time-barred, unanimously reversed, on the law, without costs, and the third-party complaint reinstated.
Frank Braunstein, for Second Third-Party Plaintiff-Appellant.
Ellen Nimaroff, for Second Third-Party Defendant-Respondent.
NARDELLI, J.P., WILLIAMS, TOM, WALLACH, ANDRIAS, JJ.
Malpractice is the negligence of a professional toward a person for whom a service is rendered (1 Weinstein-Korn-Miller, N Y Civ Prac ¶ 214.24). A "profession" is an occupation generally associated with long-term educational requirements leading to an advanced degree, licensure evidencing qualifications met prior to engaging in the occupation, and control of the occupation by adherence to standards of conduct, ethics and malpractice liability (see, Matter of Rosenbloom v. State Tax Commn., 44 A.D.2d 69, 71 lv denied 34 N.Y.2d 518). For purposes of the three-year Statute of Limitations for malpractice (CPLR 214), this field has traditionally been limited to such "learned professions" as law (Weiss v. Manfredi, 83 N.Y.2d 974), accountancy (Meinhard-Commercial Corp. v. Sydney, 109 A.D.2d 678), architecture (Board of Mgrs. of Yardarm Beach Condominium v. Vector Yardarm Corp., 109 A.D.2d 684, appeal dismissed 65 N.Y.2d 998) and engineering (Tambrands, Inc. v. Lockwood Greene Engrs., 178 A.D.2d 406). An insurance broker or agent, on the other hand, does not fit within this pattern (see, Port Auth. of N.Y. N.J. v. Evergreen Intl. Aviation, 179 Misc.2d 674)
The applicable Statute of Limitations here is six years (CPLR 213), based upon the contractual relationship between the parties in this third-party action ( National Life Ins. Co. v. Frank B. Hall Co., 67 N.Y.2d 1021; see, AJ Contr. Co. v. Trident Mgrs., 234 A.D.2d 195). To the extent that our opinion in AJ Contr. Co. might be read to include insurance brokers as "professionals" for purpose of the non-medical professional malpractice Statute of Limitations, we now disavow such an implication. An insurance broker is not capable of committing "professional malpractice" in accordance with CPLR 214 (6).
The Statute began to run upon the insured's receipt of the certificate of insurance ( Hennessey v. Gen. Acc. Ins. Co. of Am., 257 A.D.2d 750, 683 N.Y.S.2d 342). Accordingly, there should be a factual determination as to whether this action was timely commenced within six years of such receipt.
Motion to strike brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.