Steiner v. Wenning , 43 N.Y.2d 831 ( 1977 )

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, and the motion to dismiss denied.

The complaint in this action alleged that the owner had made a contract with the architect for professional services to be rendered in connection with the design and construction of a one-family home with a copy of contract attached; that the architect had negligently and carelessly performed his obligations under the contract; that the work had not been properly done or completed; and that in consequence of costs to cure and to complete, the owner had sustained damages in the amount of $35,000. In an extended and detailed bill of particulars the owner listed the items of default and damage. The answer in addition to a general denial pleaded the three-year Statute of Limitations.

On trial, after the jury had been drawn but before the introduction of evidence, plaintiffs attorney moved to amend the complaint, described as "sounding in tort and in contract”, to "sound in contract instead of tort”. Defendant’s counsel cross-moved to dismiss the complaint. The trial court denied the motion to amend and granted the motion to dismiss. The Appellate Division, by a divided court, affirmed.

There should be a modification. We cannot say that the denial of the motion to amend, addressed to the discretion of the trial court, after trial had opened and more than five years after the action had been commenced, constituted an abuse of discretion as a matter of law.

The complaint, however, without amendment stated a good cause of action in contract and sought no greater recovery than would be allowed under the law of damages with respect to contract liability. It was accordingly error to apply the three-year Statute of Limitations and the complaint should not have been dismissed (Sears, Roebuck & Co. v Enco Assoc., 43 NY2d 389 [decided herewith]).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified, with costs to appellant, in accordance with the memorandum herein ancj, as so modified, affirmed.