Hi-Tech Constr. & Mgt. Servs. Inc. v. Housing Auth. of the City of N.Y.

Hi-Tech Constr. & Mgt. Servs. Inc. v Housing Auth. of the City of N.Y. (2015 NY Slip Op 01569)

Hi-Tech Constr. & Mgt. Servs. Inc. v Housing Auth. of the City of N.Y.

2015 NY Slip Op 01569

Decided on February 24, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 24, 2015
Tom, J.P., Renwick, Andrias, Richter, Gische, JJ.

14305 602377/05 603609/05

[*1] Hi-Tech Construction & Management Services Inc., Plaintiff-Appellant,

v

The Housing Authority of the City of New York, Defendant-Respondent.



Hi-Tech Construction & Management Services Inc., Plaintiff-Appellant, -against-The Housing Authority of the City of New York, Defendant-Respondent.

Foreht Associates LLP, New York (Richard S. Last of counsel), for appellant.

David Farber, New York City Housing Authority, New York (Paul A. Marchisotto of counsel), for respondent.

Order, Supreme Court, New York County (Manuel Mendez, J.), entered August 2, 2013, which granted defendant New York City Housing Authority's motion for summary judgment dismissing the consolidated complaints, unanimously affirmed, without costs.

Plaintiff failed to provide timely written notice of its intention to make a claim for damages arising out of defendant's delay, a condition precedent to commencing an action pursuant to section 23 of the parties' contract (see A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 30-31 [1998]; Everest Gen. Contrs. v New York City Hous. Auth., 99 AD3d 479 [1st Dept 2012]). Neither plaintiff's letter concerning its opinion on preparing walls for painting, which stated that plaintiff would consider its claim for payment of skim coating a "continuous claim," without stating how much the claim was for, or delineating itself as a notice of claim, nor plaintiff's various requests for change orders, satisfied the contract (see Bat-Jac Contr. v New York City Hous. Auth., 1 AD3d 128 [1st Dept 2003]).

Defendant's defense of this litigation and participation in settlement negotiations did not [*2]constitute a waiver of section 23, nor was defendant estopped from moving for dismissal on that ground (see Huff Enters. v Triborough Bridge & Tunnel Auth., 191 AD2d 314,316-317 [1st Dept 1993], lv denied 89 NY2d 655 [1993]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 24, 2015

CLERK