Metropolitan Bridge & Scaffolds Corp. v. New York City Housing Authority

Metropolitan Bridge & Scaffolds Corp. v New York City Hous. Auth. (2016 NY Slip Op 02580)

Metropolitan Bridge & Scaffolds Corp. v New York City Hous. Auth.

2016 NY Slip Op 02580

Decided on April 5, 2016

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 April 5, 2016
Tom, J.P., Friedman, Richter, Gische, Gesmer, JJ.

729 653507/13

[*1]Metropolitan Bridge & Scaffolds Corp., Plaintiff-Respondent,

v

New York City Housing Authority, Defendant-Appellant.

David I. Farber, New York (Lauren L. Esposito of counsel), for appellant.

Eric W. Gentino, Saratoga Springs, for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 28, 2014, which, to the extent appealed from, denied defendant's motion to dismiss the second and fourth causes of action insofar as they sought payment for extra maintenance work and in quantum meruit, unanimously reversed, on the law, without costs, and the motion granted.

The contractual notice of claim requirement in section 23 of the contract's General Conditions is an express condition precedent to recovery and provides that claims are waived by the

contractor's failure to submit a sufficient notice (see Hi-Tech Constr. & Mgt. Servs. Inc. v Housing Auth. of the City of N.Y., 125 AD3d 542 [1st Dept 2015], lv denied 26 NY3d 908 [2015]; Promo-Pro Ltd. v Lehrer McGovern Bovis, Inc., 306 AD2d 221, 222 [1st Dept 2003], lv denied 100 NY2d 628 [2003]). Plaintiff's notices of claim seeking payment for "maintenance costs (Done under protest)" were insufficient as notices that the basis of plaintiff's claim was to recover for the removal of garbage thrown by the tenants onto plaintiff's sheds. Furthermore, to allow the same claim to be pleaded in quantum meruit would undermine the notice of claim requirement.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2016

CLERK