Choudhry v. Benepe

Order, Supreme Court, New York County (Lewis Stone, J.), entered June 24, 2003, which, in a proceeding to annul Parks Department determinations that petitioner contractor defaulted on two contracts, granted respondent’s motion to dismiss the petition as time-barred, unanimously affirmed, without costs.

The subject contracts, by their terms, limit petitioner’s remedy following a declaration of default to a CPLR article 78 proceeding. Since respondent declared petitioner to be in default of the two contracts in separate letters dated January 29, 2002, and petitioner did not commence the instant proceeding until August 16, 2002, the proceeding was properly dismissed as time-barred (CPLR 217 [1]). We reject petitioner’s argument that the default determinations are not final since they were issued by the Parks Department’s Chief Contracting Officer rather than its Commissioner. Under paragraphs 2.1.3 and 2.1.6 of the New York Standard Construction Contract, which was incorporated into the parties’ contracts, the Commissioner is authorized to delegate default determinations to the Chief Contracting Officer.

We have considered and rejected petitioner’s other arguments. Concur—Tom, J.P., Andrias, Saxe and Sullivan, JJ.