Opinion
22579/09.
Decided April 4, 2011.
VENERUSO, CURTO, SCHWARTZ CURTO, LLP, Attorneys for Plaintiff, By: Joseph R. Curto, Esq., Yonkers, New York.
COZEN O'CONNOR, Attorneys for Defendant, By: David A. Shimkin, Esq., New York, New York.
Plaintiff Structural Contracting Services, Inc. ("Plaintiff" or "Structural") moves (Motion Seq. #1) for an order pursuant to CPLR 3212 granting (1) summary judgment against Defendant URS Corporation-New York ("URS" or "Defendant") on its First, Second and Third Causes of Action in the amount of $60,000.00; and (2) partial summary judgment against Defendant on the issue of liability only on its Fourth and Fifth Causes of Action. Defendant opposes the motion.
Defendant moves (Motion Seq. #2) for an order pursuant to CPLR 3211(a)(5) and CPLR 3212 dismissing the Complaint based on, inter alia: (1) Plaintiff's alleged failure to file this action within the six-month statute of limitations contractually agreed to by Plaintiff and Defendant; and (2) deficiencies in Plaintiff's notice of claim. Plaintiff opposes Defendant's motion.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff was hired by Defendant under two identical subcontracts dated January 23, 2003 to perform concourse area waterproofing at the former Yankee and Shea Stadiums pursuant to a prime contract entered into between Defendant as general contractor and the City of New York (the "City") as owner (copies of the Subcontracts and the Prime Contract are attached as Ex. 1 to the Affidavit of Frank Corona, sworn to November 15, 2010 ["Corona Aff. dated 11/15/10"] [hereinafter "Subcontracts" and "Prime Contract"]).
This action arises out of Plaintiff's claims for (1) the unpaid balance allegedly due under the Subcontracts, and (2) a higher labor rate than that which was paid pursuant to certain change orders issued under the Subcontracts. Plaintiff had requested to be paid an hourly labor rate in the amount of $94.16 an hour for time and material change orders but the City's Department of Design and Construction ("DDC") determined Plaintiff was only due $53.53 an hour. Unsatisfied with the hourly rate, Plaintiff pursued with Defendant and the City its claim for the difference in the hourly rate paid ($53.53), and the hourly rate demanded by Plaintiff ($94.16 an hour) based on its costs for general liability and workers' compensation insurance (hereinafter the "labor rate dispute"). Ultimately, Plaintiff's requests were denied by the City's Comptroller in a Decision dated July 16, 2009 (the City's "July 2009 Decision") (a copy of which is attached as Ex. 12 to the Affidavit of Robert Anzilotti, sworn to November 13, 2010 ["Anzilotti Aff."]). Plaintiff then brought this action by filing a Summons with Notice on October 1, 2009 (Affirmation of David A. Shimkin, Esq. dated November 15, 2010 ["Shimkin Aff."], Ex. B).
The Complaint asserts five causes of action: (1) a First Cause of Action for breach of contract seeking the unpaid balance on the Subcontracts in the amount of $67,015.92; (2) a Second Cause of Action for an account stated seeking this same unpaid balance; (3) a Third Cause of Action for conversion based on Defendant's alleged conversion of the monies received from Defendant by the City under the Prime Contract and seeking the same unpaid balance; (4) a Fourth Cause of Action for negligence/intentional conduct based on Defendant's alleged failure to timely submit Plaintiff's labor rate dispute claim to the City, which caused Plaintiff's claim to be denied as untimely by the City in the July 2009 Decision and which allegedly caused Plaintiff to sustain damages in the amount of $416,508.00; and (5) a Fifth Cause of Action for breach of contract based on Defendant's alleged failure to timely submit Plaintiff's labor rate dispute claim to the City and seeking the same $416,508.00 in damages.
On or about January 29, 2010, Defendant filed its Answer which denied the material allegations of the Complaint and asserted as affirmative defenses: (1) the action is barred based on the Subcontract's six-month statute of limitations provision (First Affirmative Defense); (2) the action is barred based on Plaintiff's failure to exhaust administrative remedies (Second Affirmative Defense); and (3) "Plaintiff's claimed damages are based in whole or in part on ex-post facto unilateral changes to the contract made by plaintiff without defendant's consent or assent" (Third Affirmative Defense) (Shimkin Aff., Ex. E).
On November 17, 2009, Defendant served and filed a Notice of Appearance and Demand for Complaint (Shimkin Aff., Ex. C). On or about December 17, 2009, Plaintiff served and filed its Complaint (Shimkin Aff., Ex. D). This Court issued a Trial Readiness Order on October 13, 2010 and therein set a briefing schedule for these motions for summary judgment.
PLAINTIFF'S CONTENTIONS IN SUPPORT OF ITS MOTION
AND IN OPPOSITION TO DEFENDANT'S MOTION
In support of its motion, Plaintiff submits an affidavit from its President, Robert Anzilotti, which attaches as exhibits relevant portions of the Subcontracts and Prime Contract between Defendant and the City of New York, as well as pleadings, deposition transcript excerpts, and correspondence between the parties and the City.
The crux of Plaintiff's argument in support of the branch of its motion which seeks summary judgment on its First, Second and Third Causes of Action is that Defendant's Project Manager, Frank P. Corona, admitted at his deposition that Defendant owes Plaintiff approximately $60,000.00 and that the only reason why this money is being withheld is to extract from Plaintiff its signature on the final waiver of lien (Corona Tr. at 51, Anzilotti Aff., Ex. 6). It is Plaintiff's contention that it should not have to sign the waiver to obtain the unpaid balance because to do so would mean that it would forfeit its labor rate dispute (Ptf's Mem. of Law at 3).
In support of the branch of Plaintiff's motion for partial summary judgment against Defendant on Plaintiff's Fourth and Fifth Causes of Action, Anzilotti avers that with regard to change order work Plaintiff was performing, Defendant "[r]ather than compensate plaintiff for the actual rate of worker's compensation and insurance coverage (as provided for in [their] agreement) the change orders (beginning with change order number 1) were processed by utilizing a maximum allowable rate created by the cost estimate unit of the City's Department of Design and Construction" (Anzilotti Aff. at ¶ 5 [emphasis in original]). To resolve their labor rate dispute, Anzilotti asserts that the parties held a meeting on May 22, 2003 to discuss the issue and "agreed that plaintiff would timely proceed with the requested change order work at the City's rates, and that the dispute would be filed at the end of the approved change order work" ( id. at ¶ 6).
Anzilotti avers that during discovery, Defendant produced an e-mail that confirmed Plaintiff's suspicions that Defendant was purposely delaying the approval of Plaintiff's change orders in order to ensure there was sufficient funding for other matters ( id. at ¶ 7 and Ex. 8 thereto) and that in April 2004, Plaintiff learned that Defendant had not yet submitted the labor rate dispute to the City despite Anzilotti's requests that the Defendant do so pursuant to letters dated June 23, 2003 and August 21, 2003 ( id. at ¶ 8 and Ex. 7).
While Plaintiff references April 2003, it is clear from the context of the remainder of the paragraph that the reference to 2003 was a typographical error and Plaintiff meant April 2004.
Anzilotti contends that, because Defendant failed to submit the claim, Plaintiff submitted its claim directly to the City on April 22, 2004, but was advised by the City on May 10, 2004 that the claim had to be filed by Defendant in accordance with Article 29 of the Prime Contract and that Plaintiff had no standing to pursue the claim ( id. at ¶ 9, Exs. 9 10).
Anzilotti states that he "continuously asked defendant what they were doing about the claim" ( id. at ¶ 9). To support his contention, he attaches letters dated March 16, 2005 to Defendant wherein Plaintiff asked for an update and stated that the last correspondence from the DDC was in May 2004 when Plaintiff sent the information requested including "specifications, contract agreements, all correspondence relating to the labor rate, meeting minutes and certified payrolls" ( id., Ex. 11).
According to Plaintiff, its work was substantially completed in late 2003 but "pending change orders, subject to the labor rate dispute still had not been approved as late as December 2006 (in fact plaintiff never agreed to the final few change order amounts; they were forced approved by defendant . . . [ i.e.,] they signed the change orders on plaintiff's behalf) . . . Warranty work was committed through late 2007. The last check received by plaintiff was dated February 5, 2009, which was not for the balance [Plaintiff] believed [was] due and owing" ( id. at ¶ 10).
On October 6, 2008, Plaintiff contacted the City concerning the status of the City's determination on its claim and was advised by e-mail dated October 8, 2008 from Simon Sauberman (DDC) that Defendant failed to follow-up on the City's May 10, 2004 correspondence and Plaintiff's claim had not been resubmitted by URS ( id., Ex. 13). On December 29, 2008, Plaintiff wrote to URS advising them of the City's October 8, 2008 e-mail describing Defendant's default in failing to re-submit Plaintiff's claim and demanding that it be paid: (1) the $416,507.92 representing the difference in the wage rate Plaintiff contends it was owed on its change orders and what was paid; and (2) the outstanding balance owed on the Subcontracts in the amount of $191,486.16. According to Anzilotti, Defendant, on January 14, 2009, after receiving Plaintiff's December 29, 2009 letter, filed a claim with the City's DDC ( see letter of January 14, 2009, included within Exhibit 13), though the claim letter states that Defendant was proceeding with the claim on Plaintiff's behalf.
Plaintiff's contention is that it was entitled under Section 28.2.2 to be paid for its extra work "[t]he cost of worker's compensation insurance [which] shall be the subcontractor's actual rate for such coverage for the applicable class or classes of labor" and instead of being paid this actual rate, the DDC used the " Maximum Allowable" rates created by the Cost Estimating Unit of the DDC to calculate [Plaintiff's] wage rates for all change order work performed (Anzilotti Aff., Ex. 13).
Anzilotti recounts that the City denied Defendant's claim based on the fact that it was not presented to the City in a timely manner and Anzilotti attaches those determinations to his affidavit as Exhibit 14. Finally, he avers that Defendant failed to appeal the City's July 2009 Decision to the Contract Dispute Resolution Board ( id. at ¶ 13). In conclusion, Plaintiff argues that although Defendant had timely notice of plaintiff's rate labor dispute, Defendant "failed, as determined by the City, to submit it to the City in a timely manner" ( id. at ¶ 14).
Based on the foregoing facts, Plaintiff argues that pursuant to Article 29 of their Agreement, Defendant was required to submit Plaintiff's dispute within thirty days of receiving written notice of the dispute, which was provided by Plaintiff to Defendant on or about June 23, 2003. Thus, by failing to submit the dispute to the City until January 14, 2009, Defendant failed to timely submit Plaintiff's notice of dispute.
Finally, Plaintiff argues that the City's July 2009 Decision finding that Defendant did not present the notice of dispute timely is final and is binding on this Court and on Defendant (Pltf's Mem. of Law at 5).
DEFENDANT'S CONTENTIONS IN SUPPORT OF ITS MOTION AND
IN OPPOSITION TO PLAINTIFF'S MOTION
The crux of Defendant's motion is that Plaintiff's action is untimely because Plaintiff did not bring it within the contractual six-month statute of limitations found in the Subcontracts. Defendant's alternative argument is that the Complaint should be dismissed or at a minimum, its motion should be denied as there are triable issues of fact over the sufficiency (both substantively and procedurally) of Plaintiff's Notice of Claim with regard to the labor rate dispute over the change orders. On the issue of Plaintiff's right to a return of the retainage, Defendant argues that the condition precedent to the release of these funds (which are being held by the City and not by Defendant) is that Plaintiff sign a waiver and release of liens which has not happened. Further, with regard to Plaintiff's right to recover the retainage and the change order funds, Defendant argues that Plaintiff failed to comply with certain notice provisions in the Prime Contract, which resulted in a waiver of Plaintiff's right to recover such funds.
Corona denies that Defendant is wrongfully retaining funds since he testified that any retained money would be released once Plaintiff signed the waiver as long as Plaintiff [was] otherwise in compliance with its obligations (Affidavit of Frank Corona, sworn to December 15, 2010 ["Corona Opp. Aff."] at ¶ 7).
In support of its motion and in opposition to Plaintiff's motion, Defendant provides affidavits from Frank Corona, URS's project manager, an affirmation from Defendant's counsel and a memorandum of law. In his affidavit, Corona states that on or about January 18, 2002, Defendant entered into the Prime Contract with the City to perform capital improvement work at Yankee and Shea Stadiums and on or about January 31, 2003, URS contracted with Plaintiff to perform the concourse area waterproofing at Yankee and Shea Stadiums (Corona Aff. in Support dated December 15, 2010 at ¶¶ 2-3).
It is Defendant's position that Plaintiff was bound by the provisions of the Prime Contract because (1) the Prime Contract was incorporated into the Subcontracts (Subcontracts at § 1.1 Definition), and (2) in the Subcontracts Plaintiff agreed "to be bound to URS in the same manner and to the same extent as URS is bound to Owner under the Contract Documents . . . URS shall have the benefit of all rights, remedies and redress against Contractor which the Owner, by those Documents, has against URS, insofar as is applicable to this Subcontract, provided that where any provision of the Contract Documents between the Owner and URS is inconsistent with any provision of this Subcontract, the provision that imposes the more stringent requirement on the Contractor shall prevail" (Affirmation of David A. Shimkin, Esq. in Opposition dated December 15, 2010 ["Shimkin Opp. Aff."] at ¶ 22, quoting Subcontracts at § 1.2).
On the issue of the timeliness of this action, Corona provides a copy of a letter dated June 25, 2003 from Defendant to the City's DDC which enclosed a copy of Plaintiff's June 23, 2003 letter and avers that he "learned in 2004 that the City told [Plaintiff] that [Plaintiff] had to submit its claims through [Defendant]. However, following that, [Defendant] did not receive a claim from [Plaintiff] until 2008" (Corona Aff. in Support dated December 15, 2010 at ¶¶ 5-6). He also avers that Plaintiff never requested that Defendant appeal the City's July 2009 Decision ( id. at ¶ 8). Finally, he denies Plaintiff's statement that Defendant purposefully delayed the processing or approval of change orders ( id. at ¶ 9).
Corona avers that "the latest point during which [Plaintiff] did any work at either stadium was in July of 2006" (Corona Aff. in Support dated November 15, 2010 at ¶ 6). However, because the parties entered into a Waterproofing Warranty and Repair Agreement/Yankee and Shea Stadiums, which Corona attaches as an exhibit to his affidavit, Defendant asserts the latest Plaintiff could contend to have worked at the sites was the expiration of the warranty date set forth in that agreement — November 2007 ( id; Def's Stmt of Undisputed Facts at ¶ 4; Anzilotti's Tr. at 40-41 a copy of which is attached as Ex. F to Def's Stmt of Undisputed Facts).
Corona avers that Plaintiff submitted its final requisition for payment of work on both stadiums on or about March 2007 and URS submitted its final voucher for payment on or about April 2008 ( id. at ¶ 7).
Defendant contends that this action is untimely under CPLR 201, which allows contracting parties to shorten the time within which to commence an action. Defendant argues that based on the six-month statute of limitations set forth in the Supplementary Conditions Section of the Subcontracts, which provided that "[n]o action shall be maintained by [Plaintiff] . . . against [Defendant] on any claim . . . arising out of this Subcontract unless such action shall be commenced within 6 months after the date of filing of the voucher for final payment hereunder in the Officer of the NYC Comptroller, or within 6 months of the termination or expiration of this Subcontract, or within 6 months after the accrual of the cause of action, whichever is earliest" (Agreement at Exhibit C-Supplementary Conditions) this "action was untimely commenced under any of the three available analyses of the above section" (Affirmation of David A. Shimkin, Esq. dated December 15, 2010 ["Shimkin Aff."] at ¶ 16). Defendant contends that courts enforce six-month limitations periods such as the one found in the Subcontracts (Def's Mem. of Law at 3).
With regard to Plaintiff's First, Second and Third Causes of Action, Defendant argues that because Plaintiff submitted its requisition for final payment in March 2007 and Defendant filed the voucher for final payment in April 2008, "the latest . . . the action should have been commenced by" was October 2008 and it was not commenced until October 1, 2009 ( id. at ¶ 17).
Defendant argues that the action is also untimely when measured from the date the Subcontracts were terminated or expired because Plaintiff completed its work by July 2006, which would have required that any action be filed by the end of January 2007. And even if Plaintiff were to extend its last work date to the end of the warranty period — November 30, 2007 — the action would have had to have been brought by May 31, 2008 ( id. at ¶¶ 17-19).
Defendant argues that the action is also untimely if measured from the accrual of the causes of action. Because Plaintiff's first three causes of action are based on Defendant's failure to pay the unpaid balance of $67,015.92 under theories of breach of contract, account stated and conversion, Defendant argues these claims accrued in March 2007 when Plaintiff submitted its final requisition and was not paid the amount it believed was due which would require Plaintiff to have filed its action by September 2007 (Def's Mem. of Law at 5).
With regard to Plaintiff's Fourth and Fifth Causes of Action which seek to recover the $416,508.00 based on Defendant's failure to timely submit Plaintiff's labor rate dispute claim to the City, Defendant argues that assuming, but not conceding, that Plaintiff's June 23, 2003 letter was a proper submission of its claim, Defendant "was then required to submit the claim to the City within 30 days, or by August 23, 2003, but allegedly failed to do so . . . The complaint, served on October 1, 2009, was thus brought six years after the alleged breach, and was clearly untimely" and based on the same analysis, the negligence and intentional tort causes of action are likewise untimely (Def's Mem. of Law at 5-6). Defendant argues that the Subcontracts were not ones of adhesion, nor were they the product of overreaching; indeed, plaintiff has made no such allegations. Accordingly, this Court should enforce the agreed-upon six-month limitations period, and should dismiss the complaint as untimely ( id. at 6).
To support June 23, 2003 as the date of submission of Plaintiff's claim, Defendant relies not only on the letter, but also on Mr. Anzilotti's deposition testimony wherein he testified that Plaintiff submitted its claim regarding its alleged entitlement to a higher change order rate in that June 23, 2003 letter (Affirmation of David A. Shimkin, Esq. dated November 15, 2010 ["Shimkin Aff. in Support"] at ¶ 17, and Ex. F thereto at 27-29, 32).
Alternatively, Defendant argues the Complaint should be dismissed and Plaintiff's motion denied because Plaintiff failed to follow the Prime Contract's notice requirements and thereby waived Plaintiff's claims to the retainage and the change order funds. In support of this argument, Corona avers that Plaintiff (1) never submitted any verified statements pursuant to Section 42.4.5 or 42.4.8 of the Prime Contract for setting out the claims against the City for payment; and (2) never submitted written statements detailing worker and equipment information on a daily basis as required by Article 30 of the Prime Contract (Affidavit of Frank Corona, sworn to December 15, 2010 ["Corona Opp. Aff."] at ¶¶ 2-3; Shimkin Opp. Aff at ¶ 26; Def's Opp. Mem. at 10). Defendant argues that this failure resulted in a waiver of Plaintiff's right to seek the retainage or change order funds or, at a minimum, creates a question of fact as to Plaintiff's entitlement to these funds (Def's Opp. Mem at 10-11).
42.4.5 Substantial Completion Requisition:Upon written determination by the Commissioner that the Work is substantially complete, the Contractor shall submit a requisition for a substantial completion payment. The Contractor must submit the following with such requisition:
(a)a final verified statement of any and all alleged claims against the City, in any way connected with or arising out of the Work for which payment is requested, including those as to which details may have been furnished pursuant to Articles 29 and 30 hereof. With respect to each such claim, the Contractor shall set forth the total amount thereof, the various items of labor and material included therein and the alleged value of each item; and if the alleged claim be one for delay, the alleged cause of each such delay, the period or periods of time, giving the dates when the Contractor claims the performance of the work or a particular part thereof, was delayed and an itemized statement and breakdown of the amount claimed for each such delay. With reference to each such claim the Commissioner and the Comptroller shall have the same right to inspect, and to make extracts or copies of books, vouchers, records, etc . . of the Contractor or the subcontractor as referred to in Articles 29 and 30 hereof. Nothing contained in this Article is intended to or shall relieve the Contractor from the obligation of giving timely notice of claims pursuant to Articles 29 and 30 hereof. The Contractor is warned that unless such claims are completely set forth as herein required, the Contractor, upon acceptance of the substantial completion payment pursuant to this Article, will have waived any such claims arising out of the Work for which payment is requested.
(b)a final written complete punch list and a date for completion of all required work. The punch list and completion date are subject to the written acceptance of the Commissioner.
(c)If required, a request for a Substantial or final extension of time.
42.4.8 Requisition for Final Payment:The Contractor must also submit with the final requisition for Work performed any amendments to the final verified statement of any and all alleged claims against the City in any way connected with or arising out of the Work performed for which payment is requested (including those as to which details may have been furnished pursuant to Articles 29 and 30 hereof) that have occurred subsequent to Substantial Completion, setting forth with respect to each such claim the total amount thereof, the various items of labor and materials included therein, and the alleged value of each such item. With reference to each permissible claim, the Commissioner and the Comptroller shall have the same right to inspect, and to make extracts or copies of the books, vouchers, records, etc, of the Contractor or subcontractor, as referred to in Articles 29 and 30 hereof. Nothing contained in this Article, is intended to or shall relieve the Contractor from the obligation of giving timely notice of claims pursuant to Article 29 and 30 hereof. The Contractor is warned that unless such claims are completely set forth as herein required, the Contractor upon acceptance of the final payment, pursuant to Article 44 hereof, will have waived any such claims arising out of the Work performed for which payment is requested.
Article 30 of the Prime Contract required Plaintiff to provide to the City on a daily basis three copies of a written statement setting forth the name and number of each worker employed, the number of hours employed, the character of the work each worker was doing and the nature and quantity of any materials, plan and equipment furnished or used in connection with the performance of the work. Defendant argues that Plaintiff's failure to provide such statements constituted a waiver of a claim for extra compensation (Def's Opp. Mem. at 11).
Moreover, Defendant asserts that Plaintiff's one-page letter of June 23, 2003 failed to comply with Section 29.4.1 which required that Plaintiff include in the Notice of Dispute, "all facts, evidence, documents or other basis upon which the supplier relies in support of its position, as well as a detailed computation demonstrating how an amount of money claimed by the supplier was arrived at" (Shimkin Opp. Aff. at ¶ 23, quoting Prime Contract at Section 29.4.1; Def's Mem. of Law at 7). This failure to follow Section 29.4.1's requirements "resulted in [Plaintiff's] waiving its right to bring suit or assert any claims for payment, and in it failing to trigger any obligations by URS to present the claim'" ( id. at ¶ 25; Def's Mem. of Law at 7).
Defendant points out that Section 48.1 of the Prime Contract provides that "no action for damages for breach of contract or compensation for extra work shall be made or asserted unless the Contractor shall have strictly complied with all requirements relating to the giving of notice and of information with respect to such claims all as herein before provided" ( id. at ¶ 25, quoting Prime Contract at § 48.1). Because Plaintiff received (and accepted) final payment on February 5, 2009 (Corona Opp. Aff. Dated December 15, 2010 at ¶ 4) Plaintiff waived its right to all claims except for retained funds based on its acceptance of the final payment, which under Section 44.1 of the Prime Contract results in a release of any and all claims except as to retained funds (Shimkin Opp. Aff. at ¶¶ 23 — 27).
In addition to the insufficiency of the Notice of Claim/Dispute on a substantive level, Defendant also argues that it was procedurally infirm because Article XIII of the Subcontracts required Plaintiff to issue such notice "within five (5) days after such work is commenced or cause occurs, or the contractor shall be deemed to have waived any such claim' . . . [and] [b]y [Plaintiff's] own admission, [Plaintiff] was aware of a labor rate dispute by May 22, 2003 . . . when there was a meeting with the City to discuss this very issue . . . [y]et [Plaintiff] did not put any such purported notice of claim in writing to [Defendant] until June 23, 2003. The claim' was untimely under the prime contract as well, which requires such notification to be made within 30 days" (Def's Mem. of Law at 8). And even if the Notice of Claim was substantively and procedurally proper, Defendant argues that it fulfilled its obligations by submitting Plaintiff's June 23, 2003 letter to Vijay Shah of the City on June 25, 2003 or, at a minimum, Defendant's submission of Plaintiff's June 23, 2003 letter to the City "raises an issue of fact regarding whether [Defendant] complied with its notification obligations" ( id. at 8-9). Finally, Defendant argues that after the City notified Plaintiff that it had to submit its claim to the City through Defendant, Defendant did not receive any claim from Plaintiff to submit until 2008 ( id. at 9).
With regard to the branch of Plaintiff's motion which seeks a judgment for the $60,000.00 in retained funds based on Plaintiff's claim that URS is wrongfully retaining funds and that Corona admitted that Defendant is holding these funds to which Plaintiff is entitled, Defendant contends that Plaintiff's argument is a non-starter because pursuant to the Prime Contract, it is the City — not Defendant — that retains the funds and "[t]he City's authority to retain funds and to not release them until given a release of liens is also in the contract, and was agreed to by the parties" (Shimkin Opp. Aff. at ¶¶ 28-29). Thus, Defendant argues that Plaintiff is not entitled to the payment of the $60,000 retainage because the condition precedent to the release of these funds was for Plaintiff to sign a release of liens, which did not occur. Defendant further points out that Corona also "testified that retainage would be released only if [Plaintiff] was otherwise in compliance with the contracts . . . [and] [a]s detailed above, [Plaintiff] clearly [was] not in compliance, in various ways" ( id. at ¶ 29).
Defendant argues that based on the footnote in the City's July 2009 Decision, it is clear that even if the claim had been timely submitted, it would have been denied on its merits in any event ( id. at ¶ 29).
In the footnote, the City Comptroller noted "the claim is premised on an entitlement to payment based upon alleged actual costs for workers compensation and general liability while Article 28 — Methods of Payment for Extra Work provides for payment based upon actual and reasonable costs and that general liability is included in the overhead mark-up" (Anzilotti Aff., Ex. 12).
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION
In opposition to Defendant's motion for summary judgment dismissing the Complaint, Plaintiff addresses Defendant's contention that Plaintiff failed to properly submit the labor rate dispute to Defendant by attaching the three letters Plaintiff wrote to Defendant with regard to its claim — i.e., the one letter on June 23, 2003 and the two follow-up letters on March 16, 2005, which specifically requested that Defendant submit the claim on Plaintiff's behalf to the City following the City's rejection of Plaintiff's direct claim to it in May 2004 (Affidavit in Opposition of Robert Anzilotti, sworn to December 16, 2010 ["Anzilotti Opp. Aff."], Exs. 1, 2). With regard to the sufficiency of the Notice of Claim, Plaintiff asserts that the one page June 23, 2003 letter was not the only information Defendant had with regard to Plaintiff's claim since the parties engaged in many meetings over the issue and all of Plaintiff's documentation with regard to this claim was already in Defendant's possession. Further, that Defendant's argument concerning Plaintiff's failure to follow the Subcontracts' requirements was already found by the City in its July 2009 Decision to be "baseless" and Defendant is bound by that determination.
Plaintiff further disputes that its claims are barred by the Subcontracts' six-month statute of limitations because: (1) Plaintiff was not given notice that Defendant filed its final voucher for payment from the City and had no way of knowing when this occurred; (2) the Subcontracts were not terminated in accordance with Article XII of the Subcontracts and did not expire because while expiration is not defined, according to Plaintiff the contract does not expire until the final waiver and release are signed together with a final payment and Plaintiff's completion of the work did not trigger an expiration of the Subcontracts; and (3) the cause of action did not accrue until the date of the City's July 2009 Decision denying Plaintiff's claim.
As an additional argument, Plaintiff agrees that the Prime Contract was incorporated by reference into the Subcontracts, but argues that the six-month limitations period in the Subcontracts is inconsistent with the statute of limitations found in Section 48.2 of the Prime Contract, which provided:
Nor shall any such action or proceeding be instituted on any such claims unless such action or proceeding be commenced within one year after the date of the filing in the Office of the Comptroller of the final payment voucher pursuant to Article 42 except that an action or proceeding on a claim for moneys deducted, retained or withheld under the provisions of this agreement or by law, must be commenced within one year after the date of final payment hereunder or after such moneys become due and payable hereunder, whichever is later, and further except that an action or proceeding on a claim based upon the Commissioner's exercise of a the right to terminate this agreement for cause must be commenced within six months after the date the Commissioner exercises such right to terminate for cause (Prime Contract, Section 48.2).
According to Plaintiff, the last check for payment — although not final payment — was received by Plaintiff on or about February 5, 2009. Therefore, this action, which was filed in October 2009, was timely.
DEFENDANT'S REPLY
In further support of its motion for summary judgment, Defendant submits an attorney affirmation, another affidavit from Mr. Corona, and a reply memorandum of law.
In his reply affidavit, Corona avers that Defendant and the City's DDC "made final acceptance of all work on or about November 30, 2007, when the warranty for [Plaintiff's] work expired" (Reply Affidavit of Frank Corona, sworn to December 22, 2010 ["Corona Reply Aff."] at ¶ 2). He confirms that Defendant received final payment no later than January 2009. Corona asserts that Plaintiff's claim that it was impossible for it to determine when Defendant submitted its final voucher for payment is specious because Plaintiff could have easily obtained this date from Defendant or the City simply by asking.
In response to Plaintiff's contention that it repeatedly requested that Defendant submit the claim to the City, Corona avers
Mr. Anzilotti also claims that he asked [Defendant] to submit the "claim" after the DDC told him to submit it through [Defendant]. This is not accurate. At some point in April of 2004, [Plaintiff] submitted directly to the DDC a purported "claim," a copy of which [Defendant] did not receive . . . Nevertheless, [Corona] followed-up with the DDC, and relayed to [Plaintiff] the DDC's request for more information. In May of 2004, the DDC told [Plaintiff] that any claim had to go through [Defendant]. However, [Plaintiff] never submitted any claim to [Defendant] thereafter, or asked [Defendant] to submit any documents regarding this issue, until [Plaintiff] submitted a "claim" in December of 2008 (Corona Reply Aff. at ¶ 5).
Corona denies having received Plaintiff's two letters of March 16, 2005, but avers that
[i]n any event, the letters are inconsistent and irrelevant. One purportedly asks [Defendant] to follow-up with the DDC, while the other asks URS to submit the "claim" to the Comptroller. As previously stated, the DDC had directed [Plaintiff] to submit any claim through [Defendant], yet [Plaintiff] never re-submitted the old "claim" to [Defendant] to submit to the DDC, nor gave a new claim to [Defendant] to submit until 2008. And URS could not have submitted any "claim" to the Comptroller in 2005 in any event because the DDC had not rendered a decision, due to the SCS' failure to submit a claim through URS (id. at ¶ 6).
Corona attaches additional correspondence to support Defendant's position that it was not in default in failing to submit Plaintiff's claim to the City: (1) a fax/letter dated April 29, 2004 from Corona to Anzilotti advising that DDC was requesting that Plaintiff provide "a copy of all payment (requisitions) and certified payroll reports" by May 3, 2004 in the morning and that while ordinarily, all correspondence should be submitted to Defendant to then be forwarded to DDC, to expedite the delivery of this information, Plaintiff was to deliver it directly to DDC (attention Sal Cali) with a copy to Defendant; (2) a letter dated May 3, 2004 from Defendant to Sal Cali at DDC setting forth Defendant's position regarding Plaintiff's labor rate dispute which was that "if [Plaintiff] can justify [through proper documentation] their $94.16/hour rate to the satisfaction of the DDC, the rate should be approved;" and (3) a letter dated May 10, 2004 from DDC to Plaintiff advising that Plaintiff's claim as set forth in its notice dated April 22, 2004 was defective because Plaintiff has no standing to pursue the claim based on Article 29 of the Prime Contract which provides that Defendant must provide a Notice of Dispute in order to initiate the determination process (Corona Reply Aff., Ex. A).
Based on this letter, Defendant acknowledged that "in submitting their claim, [Plaintiff] has included their labor rate breakdown and workers compensation and general liability insurance rate sheets. They will also supply requested certified payroll reports" (Corona Reply Aff., Ex. A).
Defendant also submits an attorney affirmation to present Defendant's legal arguments. While the Court has considered this attorney affirmation even though it is entirely duplicative of Defendant's Reply Memorandum of Law, this practice of presenting legal argument in an attorney affirmation should be avoided in all future submissions to this Court.
Defendant contends Plaintiff has failed in its opposition to raise a triable issue of fact over whether this action is time-barred. First, Defendant asserts that Plaintiff provides no case law to support its two arguments for why holding Plaintiff to the submission of the final voucher date would be unreasonable. Further, Defendant asserts that Plaintiff's claim "regarding a lack of notice is an impermissible attempt to impose a contractual term — notice — that does not exist" (Reply Affirmation of David Shimkin, Esq. dated December 22, 2010 ["Shimkin Reply Aff."] at ¶ 9).
In response to Plaintiff's argument that the Subcontracts had neither terminated nor expired, Defendant argues that the termination provision cited by Plaintiff in Article XII is inapplicable since it involved the circumstances under which either Defendant or the City could terminate the Subcontracts based upon Plaintiff's non-performance, which did not occur here. And Plaintiff's reliance on Section 3.10 is also misplaced, argues Defendant, because that provision merely states that acceptance of final payment by the subcontractor constitutes a release of claims and does not change the definition of when the contract ends. Further, Defendant argues that while the term expiration is undefined in the Subcontracts, it is clear that the Subcontracts "existed until final acceptance by [Defendant] and DDC of all work" pursuant to Section 4.1, which occurred at the end of November 2007 when the warranty expired. As such, Defendant contends that the action would have had to have been brought by May 31, 2008, which did not occur.
On the issue of when the claims accrued, Defendant reiterates its arguments as to why Plaintiff's First, Second and Third causes of action accrued no later than March 2007 when Plaintiff submitted its final requisition, and therefore, this claim should have been brought by October 1, 2007. Defendant also raises for the first time in its reply why Plaintiff's Second cause of Action for an account stated is not legally viable. However, because this argument was not included in Defendant's initial moving papers, it has not been considered by this Court for purposes of this Decision Order ( see, e.g., Guzzello v Steinberg, Finneo, Berger, Barone Fischoff, P.C. , 68 AD3d 926 [2d Dept 2009]).
Defendant argues that even if the third cause of action for conversion accrued in January 2009 when Defendant received final payment, the action which was filed in October 2009 was untimely (Shimkin Reply Aff. at ¶ 21).
Defendant reiterates its position that Plaintiff's Fourth and Fifth Causes of Action concerning Defendant's alleged breach of contract and/or negligent or intentional acts in failing to submit Plaintiff's claim to the City is time-barred because those claims accrued in 2003 when Defendant failed to submit Plaintiff's claim. Interestingly, despite Defendant's argument that Defendant cannot be bound by the City's July 2009 Decision for the purposes of this action, Defendant disingenuously states that 2003 is the year that these claims accrued based on the fact that "[t]he City determination upon which plaintiff's suit relies states that URS failed to timely submit the claim in 2003" (Def's Reply Mem. at 6). Defendant rebuts Plaintiff's position that the Prime Contract's one-year statute of limitations trumps the six-month statute of limitations in the Subcontracts by relying on Section 1.1 of the Subcontracts which provides that "where any provision of the Contract Documents between the Owner and URS is inconsistent with any provision of this Subcontract, the provision that imposes the more stringent requirement on the Contractor shall prevail;" therefore, "[s]ince the six-months limitations provision in the subcontract is more stringent than the one-year limitations provision in the prime contract, the one in the subcontract must apply, and the action is untimely" (Corona Reply Aff. at ¶ 26).
In further support of its position that Plaintiff waived its right to bring this action pursuant to Section 48.1 of the Prime Contract in failing to comply with Section 29.4.1 by providing a detailed, itemized and substantiated claim, Defendant rehashes the arguments made in its moving papers. Defendant further contends that the Court should reject Plaintiff's current argument, raised for the first time in its opposition, that Defendant failed to file Plaintiff's dispute with the City rather than its prior argument that Defendant failed to file Plaintiff's claim. Defendant suggests that Plaintiff's change from claim to dispute "is no doubt due to the clear evidence that URS did submit the claim' on June 25, 2003, two days after the date of the claim'" ( id. at ¶ 30, citing Corona Opp. Aff., Ex. C). Defendant urges that this Court disregard Anzilotti's contentions concerning Plaintiff's requests of Defendant to submit Plaintiff's notice of claim/dispute to the City because they are based on hearsay correspondence and, even if they were made, the requests were nullities because Plaintiff "failed to follow the directions of the DDC and the [Sub]contract[s]" ( id. at ¶ 32).
This Section provides that no action "for damages for breach of contract or compensation for Extra Work shall be made or asserted . . . unless the Contractor shall have strictly complied with all requirements relating to the giving of notice and of information with respect to such claims all as hereinbefore provided" (Prime Contract § 48.1).
Finally, Defendant argues that Plaintiff cannot rely on the City's July 2009 Decision that Defendant failed to timely submit the claim or dispute because "URS, as a non-party to that determination, was not collaterally estopped or bound by any such determination. URS is free to litigate the facts and circumstances surrounding the disputed claim" ( id. at ¶ 33). Thus, Defendant argues that the City's decision was not decided against Defendant — it was decided against Plaintiff — and URS had no stake in whether or not Plaintiff was paid the extra rate by the City (Reply Mem. at 9).
Plaintiff did not submit a reply in further support of its motion.
THE LEGAL STANDARDS ON A MOTION FOR SUMMARY JUDGMENT
The proponent of a motion for summary judgment carries the initial burden of production of evidence as well as the burden of persuasion ( Alvarez v Prospect Hosp., 68 NY2d 320). The moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Failure to make that initial showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v New York University Med. Ctr., 64 NY2d 851, 643-644; Cendant Car Rental Group v Liberty Mutual Ins. Co. , 48 AD3d 397 , 398 [2d Dept 2008]; Martinez v 123-16 Liberty Avenue Realty Corp. , 47 AD3d 901 [2d Dept 2008]; St. Luke's-Roosevelt Hosp. v American Tr. Ins. Co., 274 AD2d 511 [2d Dept 2000]; Greenberg v Manlon Realty, Inc., 43 AD2d 968 [2d Dept 1974]).
Once the moving party has made a prima facie showing of entitlement of summary judgment, the burden of production shifts to the opponent, who must go forward and produce sufficient evidence in admissible form to establish the existence of a triable issue of fact or demonstrate an acceptable excuse for failing to do so ( Zuckerman v City of New York, 49 NY2d 557, 562; Tillem v Cablevision Sys. Corp. , 38 AD3d 878 [2d Dept 2007]). A party opposing summary judgment may not rest on mere conclusions or unsupported assertions ( Sun Yau Ko v Lincoln Sav. Bank, 99 AD2d 943 [1st Dept 1984], affd 62 NY2d 938; Zuckerman v City of New York, 49 NY2d 557, 562 ; see also Pierson v Good Samaritan Hosp., 208 AD2d 513, 514 [2d Dept 1994]).
The court's main function on a motion for summary judgment is issue finding rather than issue determination ( Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). The role of the Court is to determine if bona fide issues of fact exist, and not to resolve issues of credibility. Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue ( Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied ( Stone v Goodson, 8 NY2d 8; Sillman v Twentieth Century Fox Film Corp., supra). In reviewing a motion for summary judgment, the Court must accept as true the evidence presented by the nonmoving party and must deny the motion if there is "even arguably any doubt as to the existence of a triable issue" ( Baker v Briarcliff School Dist., 205 AD2d 652, 661-662 [2d Dept 1994]).
LEGAL DISCUSSION
A.The Six Month Contractual Limitations Bars Plaintiff's First, Second and Third Causes of Action But Not Plaintiff's Fourth and Fifth Causes of Action
Because Defendant's statute of limitations defense has the potential of barring Plaintiff's action, regardless of its merit, the Court addresses this branch of Defendant's motion first.
CPLR 201 permits parties to contract for a shorter statute of limitations period than that proscribed by a statute ( John J. Kassner Co. v City of NY, 46 NY2d 544; Jamaica Hosp. Med. Ctr. v Carrier Corp ., 5 AD3d 442 , 443 [2d Dept 2004]; Matter of Incorporated Village of Saltaire v Zagata, 280 AD2d 547, 547-548 [2d Dept 2001]). "Absent proof that the contract is one of adhesion or the product of overreaching or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced" (Matter of Incorporated Village of Saltaire, 280 AD2d at 547-548, quoting Timberline Elec. Supply Corp. v Insurance Co. of North Am., 72 AD2d 905, 906 [4th Dept 1979], affd 52 NY2d 793). It is to be assumed that the shortened period was agreed to voluntarily unless the party against whom an abbreviated statute of limitations is sought to be enforced demonstrates that the time is unreasonably short or was the product of duress, fraud, or misrepresentation in regard to its agreement to the shortened period ( Matter of Incorporated Village of Saltaire, 280 AD2d at 548]). Further, Defendant is correct that courts regularly enforce six month contractual statute of limitations clauses ( John J. Kassner Co., supra, Top Quality Wood Work Corp. v City of NY, 191 AD2d 264 [1st Dept 1993]).
"Where a shorter period of time than the statutory period is fixed by contract, the contractual period, in any event, must be reasonable and it may be examined to determine if it is unreasonably short . . . In making this determination of whether the contractual period of time is reasonable, consideration must be given to all provisions of the contract, the circumstances of its performance, and the relative abilities and bargaining positions of the parties . . . It is well established that the contractual limitation must not be so short as to be unreasonable in the light of the [other] provisions of the contract and the circumstances of its performance and enforcement'" ( USA United Holdings, Inc. v Tse-Peo, Inc., 2009 NY Slip Op 50775[U], 23 Misc 3d 1114(A) at * 7 [Sup Ct NY County 2009] [citations omitted], quoting Fitzpatrick Weller v Miller, 309 Ad2d 1273, 1273 [4th Dept 2003], quoting Matter of Brown Guenther, 18 AD2d 327, 329 [1st Dept 1963]). "To be reasonable, a contractually shortened limitations period must provide sufficient time to investigate and pursue a judicial remedy. A contractual limitations provision that would require that the action be brought before the loss or damage can be ascertained is per se unreasonable" (54 CJS Limitations of Actions § 65).
As an initial matter, the Court agrees that to the extent the contractual statute of limitation is reasonable ( i.e., enforceable) it is the six-month statute of limitations found in the Subcontracts rather than the one-year statute of limitations found in the Prime Contract that controls. Here, Plaintiff concedes that the Subcontracts incorporated by reference the terms of the Prime Contract (Subcontracts, §§ 1.1 and 1.2) but further provided that to the extent any provision in the Prime Contract was inconsistent with any provision of the Subcontracts, the provision that imposed the more stringent requirement on Plaintiff would control (Subcontracts, Section 1.2) — accordingly, to the extent it is enforceable, the six-month period is the limitations period applicable to this action.
The one-year limitations period of the Prime Contract, which is not controlling, provided:
Nor shall any such action or proceeding be instituted or maintained on any such claims unless such action or proceeding be commenced within one year after the date of the filing in the office of the Comptroller of the final payment voucher pursuant to Article 42: except that an action or proceeding on a claim for moneys deducted, retained or withheld under the provisions of this Agreement or by law, must be commenced within one year after the date of final payment hereunder or after such moneys become due and payable hereunder, whichever is later, and further except that an action or proceeding on a claim based upon the Commissioner's exercise of the right to terminate this Agreement for cause must be commenced within six months after the date the Commissioner exercises such right to terminate for cause (Prime Contract, Section 48.2).
The six-month limitations period found in the Subcontracts, Exhibit C, Supplementary Conditions, paragraph 2, had three dates from which the limitations period would be measured with the earliest of these three dates to control:
No action shall be maintained by Contractor, its successors or assigns, against CM on any claim based upon or arising out of this Subcontract unless such action shall be commenced within six (6) months after the date of filing of the voucher for final payment hereunder in the Office of the NYC Comptroller, or within six (6) months of the termination or expiration of this Subcontract, or within six (6) months after the accrual of the cause of action, whichever is earliest
Turning to the reasonableness of this limitations period with regard to Plaintiff's claims, the Court views its reasonableness differently with regard to Plaintiff's First, Second and Third Causes of Action as compared to Plaintiff's Fourth and Fifth Causes of Action. And because the Prime Contract, which was incorporated by reference into the Subcontracts contains severability provisions ( see Prime Contract Sections 1.1, 56.1, 57.1), the potential unenforceability of the statute of limitations provision as to some claims would not necessarily require that the provision be found unenforceable as to Plaintiff's other claims ( Sommer v Federal Signal Corp., 79 NY2d 540; Bennett v Bank of Montreal, 161 AD2d 158 [1st Dept 1990]; Chiarizia v Xtreme Rydz Custom Cycles , 43 AD3d 1353 [4th Dept 2007]; Cirillo v Slomin's Inc., 196 Misc 2d 922 [Sup Ct Nassau County 2003]).
1.The First, Second and Third Causes of Action
The Court turns first to the timeliness of Plaintiff's claims for the unpaid balance of the Subcontracts.
Plaintiff acknowledges that its work was "substantially completed" in late 2003 but asserts that "warranty work" continued through late 2007 (Anzilotti Aff. at ¶ 10). Defendant states that Plaintiff did not do any work at either Stadium after July 2006 and the "warranty" on Plaintiff's work expired on November 27, 2007 (Corona Aff. dated November 15, 2010 at ¶ 6). Plaintiff acknowledges that the last payment it received from Defendant was dated February 5, 2009, though Plaintiff alleges that this payment did not represent full payment for the balance claimed by Plaintiff (Anzilotti Aff. at ¶ 10; Anzilotti Opp. Aff. at ¶ 11).
According to the affidavit submitted in support of Defendant's motion, Plaintiff submitted its "final requisition for payment" for work on both Stadiums "on or about March 2007" (Corona Aff. dated November 15, 2010 at ¶ 7). This assertion is not rebutted in Plaintiff's opposition papers and nothing to the contrary appears in any of Plaintiff's other evidentiary submissions.
According to Defendant, it submitted its final payment voucher to the City in April 2008 ( id).
The three measuring periods under the Subcontract are six months from: (1) the date of filing of the voucher for final payment from the City; (2) termination or expiration of the Subcontracts; (3) six months from accrual of the cause of action, which ever comes first.
While the terms "termination" and "expiration" are undefined terms, the provisions concerning termination in the Subcontract and the Prime Contract concern the Owner's and General Contractor's right to terminate the Subcontract and Prime Contract before the contracts are fully performed (Subcontract, Article XII, and Prime Contract Articles 45 and 46). Since it is undisputed that Plaintiff competed its performance, there is no basis for a finding that the Subcontract was terminated. While it is unclear whether the use of the term "expired" was to have a meaning separate from "termination" and therefore, it is unclear whether the Subcontract ever expired, the Court need not resolve this issue since the Court must measure the six-month period from the earliest of three possible dates so even if the Subcontract has not yet expired, this date would not be controlling.
As above noted, Defendant claims to have submitted its final payment voucher to the City in April 2008. Plaintiff does not dispute this. Plaintiff argues that this measuring point "cannot be binding" on Plaintiff because it would be impossible for Plaintiff to know when Defendant filed its last voucher and, in this instance, Defendant did not give Plaintiff notice of the filing (Anzilotti Opp. Aff. at ¶ 9). However, as Defendant points out, Plaintiff agreed to the Subcontracts and there is no reason to perceive that Plaintiff, as an experienced contractor, was unable to protect its interests in the contract negotiations. Moreover, both parties have submitted various exhibits reflecting the exchange of correspondence and e-mails between the parties. As Defendant further points out, Plaintiff offers no evidence as to whether Plaintiff ever endeavored to find out if Defendant had filed its final payment voucher, either by asking Defendant or by asking the City. While it is true that Defendant was not required by the Subcontracts to give notice to Plaintiff of the filing of its final payment voucher, there is no indication that Plaintiff could not have negotiated such a provision. Having either not requested a notice provision or having not successfully negotiated one, Plaintiff was obligated, not unreasonably, to take minimal steps to inquire as to whether Defendant had filed its final voucher. There is no indication that Plaintiff ever asked or that, if asked, Defendant would have refused. There is no indication that Defendant ever misrepresented the status of the filing of its final voucher to Plaintiff. Accordingly, the claim for the unpaid balance was time barred by not later than October 2008, six months from the filing of the final voucher — about one year before this action was filed.
Apart from this, it is manifest that Plaintiff's First, Second and Third Causes of Action claim accrued more than six months prior to the commencement of this action.
The First Cause of Action asserts that: (1) beginning in January 2003, Plaintiff did work under the written agreements of the parties; (2) the agreed and reasonable value of the services was $3,825,792.61; (3) Defendant paid $3,758,776.96; and (4) there is an unpaid balance due of $67,015.92. The Second Cause of Action seeks the same money on a theory of account stated. The Third Cause of Action seeks the same money on a theory of conversion; the claim being that the Defendant converted the funds paid to it by the City of New York. There is no contention by Plaintiff that the payment of the sums at issue in the First, Second, and Third Cause of Action was subject to the submission of any dispute involving these sums to the City.
The Court notes that the claim is one for common law conversion and is not asserted as an improper diversion of trust fund assets under Lien Law Article 3-A.
Taking the Third Cause of Action first, a claim for conversion accrues from the earlier of the time when a defendant refuses to return the property after a demand, or the time when the defendant disposes of the property ( Malanga v Chamberlain , 71 AD3d 644 [2d Dept 2010]). While Defendant alleges that it received final payment from the City not later than January 2009 (Shimkin Reply Aff., Ex. A at ¶ 3), Defendant offers nothing as to when or if: (a) Plaintiff demanded the property in question; or (b) Defendant disposed of the property. Thus, Defendant has failed to show prima facie when the six months statute of limitations began to run as to the Third Cause of Action. That said, this avails Plaintiff little because (1) the date of Defendant's submission of the final payment voucher to the City was necessarily earlier and thus the statute of limitations runs from that point; and (2) there is no merit to this cause of action anyway.
It is well settled that "a claim of conversion cannot be predicated on a mere breach of contract"; to maintain a claim for conversion, Plaintiff was required to submit evidence demonstrating a wrong independent from its contract claim ( MBL Life Assur. Corp. v 555 Realty Co., 240 AD2d 375, 376 [2d Dept 1997]). A cause of action alleging conversion must be dismissed when the plaintiff does not allege legal ownership or an immediate right of possession to specifically identifiable funds and that the defendant exercised an unauthorized dominion over such funds to the exclusion of the plaintiff's rights. Moreover, the mere right to payment cannot be the basis for a cause of action alleging conversion since the essence of a conversion cause of action is the unauthorized dominion over the thing in question. Since the Third Cause of Action is based upon an alleged contractual right to payment where the plaintiff never had ownership, possession, or control of the disputed funds, the Third Cause of Action for conversion fails as a matter of law (Daub v Future Tech Enter., Inc. , 65 AD3d 1004, 1006 [2d Dept 2009]).
As to the Second Cause of Action, in support of its motion, Defendant asserts that Plaintiff submitted its final requisition for payment in or about March 2007 (Corona Aff. dated November 15, 2010 at ¶ 7). In opposition, Plaintiff failed to offer any evidence that it ever sent a bill, invoice or requisition, or other statement of account to Defendant at any time thereafter. A cause of action based on account stated accrues when an account is rendered, after the last transaction between the parties, which account was received, examined, and retained by defendant ( Slayback v Alexander, 179 AD 696 [1st Dept 1917]; Hertzberg Sanchez, P.C. v Friendship Dairies, Inc., 2007 NY Slip Op 50234 [U],14 Misc 3d 136 [A] [App Term 2007] [Rudolph, PJ; McCabe, Lippman, JJ). Once an account has been stated, the creditor cannot extend the running of the Statute of Limitations merely by rendering the same account over again from time to time ( Joseph Gaier, P.C. v Iveli, 287 AD2d 375 [1st Dept 2001]. While the final requisition for payment was submitted in March 2007, the last payment was not made until February 5, 2009. Giving Plaintiff the benefit of every favorable inference, the Court infers that Defendant had retained and was still actively examining the invoice until the time it made its last payment, rather than concluding that Defendant had examined it and retained it earlier. Thus, the six months statute of limitations provided for in the contract ran not later than August 5, 2009.
As to Plaintiff's First Cause of Action, its contract claim, a cause of action for breach of contract accrues when the plaintiff has the legal right to demand payment ( Swift v New York Med. College , 25 AD3d 686 [2d Dept 2006]). It is undisputed that the reason that Defendant has refused to pay the $61,908.91 at issue in this Cause of Action is that Plaintiff refused to sign a waiver of lien (due to the existence of the claims at issue in the Fourth and Fifth Causes of Action). While it is also undisputed that the last check sent to Plaintiff was dated February 5, 2009, no evidence has been offered on this motion as to when and how Plaintiff was notified that the payment of the $61,908.91 was dependent upon its execution of a waiver of lien. While the Court cannot determine, on this record, when the First Cause of Action "accrued", the First Cause of Action is barred by the failure to commence the action within six months of Defendant's submission of its final payment voucher to the City.
Plaintiff's First, Second and Third Causes shall be dismissed as untimely.
2.The Fourth and Fifth Causes of Action
While the Court views the six-month contractual limitations reasonable and enforceable in connection with Plaintiff's First, Second and Third Causes of Action, the Court does not find the six-month statute of limitations reasonable and enforceable with regard to Plaintiff's Fourth and Fifth Causes of Action based on Defendant's alleged failure to timely submit Plaintiff's labor rate dispute claim to the City. Because the Subcontracts and Prime Contract prohibited Plaintiff from suing until it had exhausted the dispute procedure set forth in those agreements, and, as a result, Plaintiff did not sustain any damages until the City denied its claim in its July 2009 Decision, the six-month limitations period is unenforceable as it "unreasonably deprives the plaintiff of a course of action" ( Certified Fence Corp. v Felix Indus., Inc., 260 AD2d 338 [2d Dept 1999]).
In Certified Fence Corp., a subcontract contained a 90-day period of limitations which required that the subcontractor sue within 90-days after the work was completed. However, the subcontract also contained a "pay-when-paid" provision that required that the general contractor be paid by the owner before being required to pay the subcontractor. After the work was completed and the general contractor defendants submitted their payment requisition for $541,016.16, the owner filed for bankruptcy. After the conclusion of the bankruptcy proceedings, the owner made three payments to the defendants totaling $122,000, but none of the money was paid to plaintiff-subcontractor. The Appellate Division, Second Department, affirmed the trial court's decision following a bench trial which found the 90-day statute of limitations unenforceable because it conflicted with the pay-when-paid clause and stated:
where two provisions of a contract conflict, the contract must be resolved against the party who drew the contract . . . [i]n the instant case, the 90-day period of limitations, while freely agreed to by the parties, is inconsistent with the pay-when-paid clause, and is unenforceable since it unreasonably deprives plaintiff of a course of action. Under the pay-when-paid clause, the plaintiff could not maintain its action against the general contractor until the owner paid the general contractor. However, by that time, due to the bankruptcy of the owner, the 90-day limit would have expired. Moreover, if the two clauses are given effect, and the plaintiff brought an action to recover the value of the work performed within the 90-day limit, the action would have failed by virtue of the non-occurrence of the condition that payment be made by the owner to the general contractor. Therefore, interpreting the contract against defendants, we find that the 90-day period of limitations is not applicable in this case, and that the action was timely commenced under the applicable Statute of Limitations ( Certified Fence Corp., 260 AD2d at 683-684).
The Second Department reaffirmed its holding in Certified Fence Corp. in JC Ryan Ebco/H G, LLC v Lipsky Enter., Inc. ( 78 AD3d 788 [2d Dept 2010]). In JC Ryan Ebco, a subcontract contained a "pay-when-paid" clause which required that "the payment by the Owner of any progress or final payment is a condition precedent to Contractor's obligation to make payment to the Subcontractor'" and that the subcontractor was required to "pursue lien foreclosure action to final judgment as a condition precedent to commencing any action against the Contractor'" ( id. at 789). The subcontract further had a provision requiring that any action by the subcontractor relating to the performance or breach of the subcontract had to be commenced within six months "after the Work of the Subcontractor has been substantially completed'" ( id.). Defendants moved to dismiss pursuant to CPLR 3211(a)(5) based on the six-month statute of limitations. The Second Department affirmed the trial court's denial of Defendant's motion to dismiss because the six-month limitations clause conflicted with the pay-when-paid clause (which was also invalidated on public policy grounds) "since the subcontractor's right to bring an action against the contractor and/or its right to bring an action to foreclose a mechanic's lien might not ripen until after the expiration of the six-month limitations period" and that the two clauses were not severable ( id. at 789-790).
The rationale underlying the holdings in Certified Fence Corp. and JC Ryan Ebco applies with equal force here. As in Certified Fence Corp., the condition precedent to the initiation of Plaintiff's Fourth and Fifth Causes of Action for payment on the increased labor rate for the change orders is that it follow the Notice of Claim/Dispute provisions of the Subcontracts and Prime Contract.
While there is no "pay-when-paid" clause in the contracts in this case, the dispute resolution process was a condition precedent to bringing suit just as much as the "pay-when-paid" clause was a condition precedent to bringing suit and it is this analogy that brings this case into the ambit of the Second Department's precedent.
Plaintiff concedes in its papers that it was bound by the Notice of Claim/Dispute provisions because the Prime Contract was incorporated by reference into the Subcontract. Further, Plaintiff operated under this construct in its dealings with Defendant and the City. Therefore, the Court need not address whether this was indeed the case ( i.e., were the Dispute Resolution provisions of the Prime Contract sufficiently incorporated into the Subcontract as to bind Plaintiff to those provisions). The Court assumes for the purposes of this Decision that Plaintiff was bound such that Plaintiff's completion of that process was a condition precedent to its right to bring any lawsuit. A condition precedent is an act or event, other than a lapse of time, which, unless excused, must occur before a duty to perform a promise in the agreement arises ( Oppenheimer Co. v Openheim, Appel, Dixon Co., 86 NY2d 685, 690 [1995]). "Express conditions must be literally performed, whereas constructive conditions, which ordinarily arise from language of promise, are subject to the precept that substantial compliance is sufficient" ( id.).
From Anzilotti's affidavit and his attached correspondence, it appears Plaintiff timely notified, or at a minimum there is a triable issue of fact over whether Plaintiff timely notified Defendant of its claim. Further, Plaintiff pursued its claim directly with the City by letter to the City dated April 22, 2004, which was rejected by the City on May 10, 2004 due to Plaintiff's lack of standing to submit the claim. Anzilotti avers that Plaintiff followed up with Defendant and provided the needed documentation and then even followed up with correspondence in March 2005 requesting that Defendant submit Plaintiff's claim to the City. While Defendant has submitted evidence raising a triable issue of fact over whether it timely submitted this claim to the City and/or whether Plaintiff is to blame for the failure to resubmit the claim after the City's letter to Plaintiff in May 2004 that the claim had to be submitted by Defendant, it is evident that the City did not recognize any such submission until Defendant submitted the claim on January 14, 2009. Thus, until the City rendered its July 2009 Decision denying Plaintiff's claim, Plaintiff was contractually prohibited from bringing suit on its claim for additional monies owed on the change orders due to the labor rate dispute and, indeed, Plaintiff had not yet sustained any damage.
While Defendant contends that the June 23, 2003 notice of claim was untimely because the parties had a meeting on May 22, 2003 at which Plaintiff learned that the City would not pay Plaintiff's requested labor rate of $94.16 per hour and would only pay the labor rate of $ 51.53, Plaintiff has provided this Court with a letter dated June 23, 2003 from Defendant to Plaintiff which advises that based on the review of Plaintiff's labor rate as embodied in Plaintiff's change order, the documentation provided by Plaintiff and the meetings held between DDC, Plaintiff and Defendant, that "it has been determined that the DDC approved rate is $51.53. Therefore, all change orders currently under review will consider the $51.53 hourly rate. Any claims or protests by [Plaintiff] related to this decision should be made in accordance with Article XIII of the Construction Services Subcontract" (Anzilotti Aff., Ex. 7). Nowhere in this letter does Defendant suggest that Plaintiff's claim to date was untimely and Plaintiff appears to have promptly responded to this June 23, 2003 letter with its own letter that same date. Accordingly, Plaintiff has raised triable issues of fact over the timeliness of its notice of claim and/or Defendant's waiver as to the timeliness of the Notice of Claim. With regard to the sufficiency of Plaintiff's Notice of Claim, while Defendant contends that Plaintiff's single-page letter did not comply with the requirements found in the Subcontracts and Prime Contract, Plaintiff has supplied evidentiary proof in Anzilotti's affidavit and attached exhibits which shows that Plaintiff provided the back-up materials requested by the City, and, therefore, there are triable questions of fact over the sufficiency of Plaintiff's claim.
Another reason for denying Defendant the benefit of this six-month statute of limitations as to Plaintiff's Fourth and Fifth Causes of Action is that there are triable issues of fact over whether Defendant frustrated the condition precedent to Plaintiff's bringing suit on these claims based on Defendant's failure to timely pursue the dispute on Plaintiff's behalf with the City. It is well settled that a "party to a contract cannot rely on the failure to perform a condition precedent where he has frustrated or prevented the occurrence of the condition'" ( MHR Capital Partners LP v Presstek, Inc ., 12 NY3d 640 , 646, quoting ADC Orange, Inc. v Coyote Acres, Inc. , 7 NY3d 484, 490; Rochester Community Individual Prac. Assoc., Inc. v Finger Lakes Health Ins. Co., 281 AD2d 977 [4th Dept 2001]; Rappaport v Sabbeth, 134 AD2d 419 [2d Dept 1987]).
Based on the foregoing, the Court finds that the six-month statute of limitations is a bar to Plaintiff's First, Second and Third Causes of Action as a matter of law but that there are triable issues of fact as to whether it is a bar as to Plaintiff's Fourth and Fifth Causes of Action. Accordingly, the branch of Defendant's motion seeking dismissal based on the contractual six-month statute of limitations is granted as to the First, Second and Third Causes of Action and said causes of action shall be dismissed, and that Defendant's motion is denied as to the Fourth and Fifth Causes of Action.
B.There Are Triable Issues of Fact Surrounding Plaintiff's Fourth and Fifth Causes of Action
The crux of the branch of Plaintiff's motion for summary judgment against Defendant (liability only) on its Fourth and Fifth Causes of Action is that the issue over the timeliness of Defendant's submission of Plaintiff's claim to the City has already been decided against Defendant based on the City's July 2009 Decision which provided:
By letter dated June 23, 2003, URS advised SCS that based upon the information provided by SCS and the meetings held between DDC, SCS and URS, DDC had determined that the hourly labor rate for time and material change orders is $53.53 as opposed to $94.16 requested by SCS. URS further instructed SCS to follow Article XIII of its subcontract regarding any claims or protest. By letter dated June 23, 2003, SCS complied with its subcontract by giving notice of claim to URS regarding the difference between the DDC approved rate of $51.53 and its claimed actual rate of $94.16. A Notice of Dispute under Article 29 however was not submitted to the Agency Head by URS on behalf of SCS until January 14, 2009. By letter dated March 25, 2009, DDC rejected the dispute as untimely. By letter dated May 11, 2009, URS filed a Notice of Claim pursuant to Article 29 on behalf of SCS. By letter dated June 17, 2009, the Comptroller's office requested an explanation from URS as to why the Comptroller should not conclude that the dispute was not filed timely by URS and why URS did not include dispute resolution provisions in the SCS subcontracts.
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By letter dated June 29, 2009, URS states that SCS did not file their claim in accordance with the contract until December 2008. URS states that the SCS letter dated June 23, 2003 did not provide any information to document or substantiate their claim and that all parties understood this letter to be SCS' way of documenting that they objected to the DDC labor rate. URS states that it was not until December 2008 that URS received from SCS a request in accordance with Article 29 for a decision from the Agency Head, which included supporting documentation, evidence, calculations, etc. URS states that this was the first time that SCS complied with the terms of the contract in order to resolve their claim. URS therefore disagrees that it did not file the dispute timely. In reference to the lack of dispute resolution provisions in the SCS contracts, URS states that the contract between DDC and URS contains the dispute resolution provisions in Article 29 and this contract is incorporated into the URS/SCS subcontracts by virtue of Article 1 — Contract Documents.
***
For the reasons below, we find that URS did not present the Notice of Dispute to the Agency Head timely under Article 29. The subject dispute involves SCS' dispute of the DDC approved labor rate for time and material change orders. The dispute clearly arose in June 2003 after URS was advised by SCS that they objected to the rate determined by the DDC. Under Article 29, URS was required to present a Notice of Dispute to the Agency Head within (30) days. Instead, URS did not present a Notice of Dispute until January 14, 2009, many years after the prescribed time limitation had expired. The rationale given by URS as to why the dispute was not filed timely in 2003 is baseless. While URS explains that SCS did not document or substantiate its claim in 2003, such reasoning is irrelevant to the timeliness of the dispute and instead goes to its merits. By virtue of SCS' letter dated June 23, 2003, URS was clearly put on notice that SCS was disputing the DDC determination as to the hourly rate in compliance with Article XIII of its subcontract. Upon receipt of such notice, URS was required to present a Notice of Dispute to the Agency Head within 30 days, regardless of whether or not the claim was documented or substantiated. Further, URS' contention that SCS did not timely request an Agency Head decision under Article 29 is also baseless. URS' position that the SCS subcontracts include the dispute resolution provisions by virtue of Article 1 of the subcontracts completely ignores the explicit requirements contained in Article 10 of URS' contract that such subcontracts shall include dispute resolution provisions. Moreover, by letter dated June 23, 2003, URS instructed SCS that any claims or protest related to the DDC decision should be made in accordance with Article XIII of the Construction Services Subcontract, which is exactly what SCS did. Such instructions by URS to SCS recognized that the subcontracts did not contain dispute resolution provisions. In view of the above, we find that URS did not present the Notice of Dispute to the Agency Head timely and therefore the claim must be denied (Anzilotti Aff., Ex. 14 [emphasis in original]).
Plaintiff provides no case law for why Defendant should be bound by this determination for purposes of this action. Defendant, on the other hand, vehemently disputes that the July 2009 Decision should have any collateral estoppel effect on this action by arguing that the July 2009 Decision was not decided against Defendant, it was decided against Plaintiff, Defendant was not a party to the dispute and had no stake in whether or not the City paid Plaintiff its claim. And, in any event, says Defendant, the City's July 2009 Decision all but states that it would have denied Plaintiff's claim on the merits because Section 28.2 of the Subcontract provides that "the price to be paid for such Extra Work shall be the actual and reasonable cost of necessary materials, labor and workers compensation insurance' . . . general liability insurance, since it is not listed in Section 28.2, is not subject to extra payment at all. This is evident in Sections 10.2.2(3) and 28.2.7 of the Prime Contract, which provide that, as the City points out in a footnote, general liability insurance is part of the overhead mark-up costs" (Def's Opp. Mem. at 13).
The one case Plaintiff cites, L.A. Wenger Contr. Co. v Kreisler Borg Florman Gen. Constr., Co. ( 43 AD3d 305 [1st Dept 2007]), has nothing to do with the binding effect, if any, to be provided to the City's July 2009 Decision.
Collateral estoppel precludes the relitigation of issues that are identical to ones necessarily decided in prior litigation provided that the litigant against whom preclusion is sought had a full and fair opportunity to litigate the issues in the prior case ( see, e.g., Gilberg v Barbieri, 53 NY2d 285; Sucher v Kutscher's Country Club, 113 AD2d 928 [2d Dept 1985]). Collateral estoppel is invoked when the cause of action in the second proceeding is different from that in the first and applies to a prior determination of an issue which was actually and necessarily decided in the earlier case ( DaimlerChrysler Corp. v Spitzer , 6 Misc 3d 228 [Sup Ct Albany County 2004], affd 26 AD3d 88 [3d Dept 2005], affd 7 NY3d 653).
"Two requirements must be met before collateral estoppel can be invoked. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling" ( Buechel v Bain, 97 NY2d 295, 303-304). Thus, "[w]here these requirements are met, there is no need, as there is with res judicata, that the cause of action sought to be barred be substantially identical to [the] one decided in the prior action or that the party seeking to invoke the doctrine have had any connection to the prior action" ( Singleton Mgt., Inc. v Compere, 243 AD2d 213, 216 [1st Dept 1998]).
"The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party. . . . The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" ( Buechel, supra, 97 NY2d at 304; Manshul Constr. Corp. v New York City School Constr. Auth., 192 AD2d 659 [2d Dept 1993]; Roth v Syracuse Housing Auth., 2002 NY Slip Op 40550[U], 2002 WL 31962630 [Sup Ct Onondaga County 2002]).
The Dispute Resolution Process of the Prime Contract is, in effect, a form of dispute resolution by arbitration. Article 29 provides that "[a]ll disputes between the City and the Contractor (hereinafter referred to as the supplier') of the kind delineated in this section . . . shall be finally resolved in accordance with the provisions of this section and the Rules of the Procurement Policy Board" and "[t]he procedure for resolving all dispute of the kind delineated herein shall be the exclusive means of resolving any such dispute" (Prime Contract, § 29.1). The Dispute Resolution Process envisions that the dispute would be presented first to the Agency Head (DDC) who would render a determination. According to Section 29.4.4, "the Agency Head'sdecision shall be final and binding on all parties, unless presented to the Contract Dispute Resolution Board ["CDRB"] pursuant to this section" (Prime Contract, § 29.4.4). However, before the claim could be presented to the CDRB, the claim had to be presented to the Comptroller for his or her review, investigation and possible adjustment for a period of 45 days (the period to begin upon the Comptroller's receipt of all relevant materials) (Prime Contract, § 29.4.4). At the conclusion of that 45 days and for 30 days thereafter, the supplier could pursue its claim before the three person Contract Dispute Resolution Board ("CDRB"). As to the finality of the CDRB's decision, Section 29.7.4 provides that "[d]ecisions of the CDRB shall only resolve matters before the CDRB and shall not have precedential effect with respect to matters not before the CDRB" and Section 29.7.6 provides that the CDRB's decision shall be final and binding on all parties.
The Article specified that it applied to disputes over the amount to be paid for Extra Work (Prime Contract, § 29.1.2)
It is well settled that the doctrines of res judicata and collateral estoppel apply to arbitration awards, even unconfirmed awards ( American Ins. Co. v Messinger, 43 NY2d 184, 189).
Plaintiff has met its burden of showing that the issue over the timeliness of Defendant's submission of the Notice of Dispute to DDC was determined adversely to Defendant in the City's Comptroller's July 2009 Decision. Defendant could have pursued a review of that determination by the CDRB but failed to do so. Contrary to Defendant's argument, the July 2009 Decision denied Defendant's application, although the Defendant had initiated the application at Plaintiff's bequest. Defendant has not offered any evidence to support the idea that Plaintiff controlled the Dispute Resolution Process or that it made the litigation decisions regarding that process. While Defendant contends that it did not pursue an administrative appeal because Plaintiff did not ask it to, Defendant offers nothing to indicate that the decision to forego any administrative appeal was Plaintiff's to make. In light of language found in Section 29.1, and the undisputed fact that it was Defendant who submitted the claim that resulted in the July 2009 Decision, Defendant's argument that it was not a party to this process is without merit.
Defendant offers nothing other than its contention that it had no stake in the process to support that it did not have a full and fair opportunity to litigate the issue. It was Defendant who entered into the Prime Contract that specified this form of dispute resolution. Further, it seems that Defendant had a stake in the process to the extent that, if the City had granted the claim and gave Defendant the additional money in question and paid it to Plaintiff, Defendant would not be exposed to any possible liability to Plaintiff for this claim. On the other hand, by not pursuing the claim or by not pursuing the claim with vigor, Defendant risked the expense of this litigation and having liability to Plaintiff, notwithstanding that the City was off the hook.
Defendant's failure to take the review to the next level of the CDRB was its choice to make and given the language found in Section 29.4.4 to the effect that "the Agency Head's decision shall be final and binding on all parties," the Court has no option but to conclude that the determination as to the timeliness of Defendant's submission of the Notice of Dispute should be final and binding in this action.
Accordingly, Plaintiff's motion for summary judgment shall be granted to the extent Defendant shall be collaterally estopped from re-litigating the issue over the timeliness of its submission of the Notice of Dispute in this action. However, whether Defendant actually breached a duty to Plaintiff will depend upon whether or not Plaintiff's claim had any merit in the first place. Thus, simply because Defendant will not be able to litigate the issue over whether or not it timely submitted the Notice of Dispute, the adverse determination of this issue does not resolve the issue of Defendant's liability on the Fourth and Fifth Causes of Action as Defendant cogently points out. Thus, there is still an issue over whether Defendant's failure to timely submit Plaintiff's Notice of Claim caused it to sustain any damage since there is an issue over whether Plaintiff's labor rate dispute had any merit — i.e., whether the costs of the General Liability and Workers Compensation insurance were compensable or whether they were included within Plaintiff's overhead. Accordingly, Plaintiff's motion for summary judgment as to Defendant's liability on the Fourth and Fifth Causes of Action shall be denied.
CONCLUSION
The Court has considered the following papers in connection with this motion and cross-motion:
(1) Notice of Motion dated November 13, 2010; Affirmation of Joseph R. Curto, Esq. dated November 13, 2010 and the exhibits annexed thereto; Affidavit of Robert Anzilotti, sworn to November 13, 2010 and the exhibits annexed thereto;
(2) Plaintiff's Memorandum of Law in Support of the Relief Requested in the Notice of Motion dated November 13, 2010;
(3) Affirmation of David A. Shimkin, Esq. in Opposition dated December 15, 2010 and the exhibits annexed thereto; Affidavit of Frank Corona, sworn to November 15, 2010 and the exhibit annexed thereto; Affidavit of Frank Corona, sworn to December 15, 2010 and the exhibit annexed thereto;
(4) URS Corporation's Memorandum of Law in Opposition to Structural Contracting Services, Inc.'s Motion for Summary Judgment dated December 15, 2010;
(5) Notice of Motion dated November 15, 2010; Defendant's Statement of Undisputed Material Facts Pursuant to Rule 19-A of the Commercial Division dated November 15, 2010; Affirmation of David A. Shimkin, Esq. dated November 15, 2010 and the exhibits annexed thereto; Affidavit of Frank Corona, sworn to November 15, 2010 and the exhibit annexed thereto;
(6) Memorandum of Law in Support of URS Corporation's Motion for Summary Judgment dated November 15, 2010;
(7) Affidavit of Robert Anzilotti in Opposition, sworn to December 14, 2010 and the exhibits annexed thereto;
(8) Reply Affirmation of David A. Shimkin, Esq. Dated December 22, 2010; Reply Affidavit of Frank Corona, sworn to December 22, 2010 and the exhibits annexed thereto; and
(9) URS Corporation's Memorandum of Law in Reply to Plaintiff's Opposition to Motion for Summary Judgment and In Further Support of Motion dated December 22, 2010.
Accordingly, for the reasons stated and based upon the papers aforesaid, it is hereby
ORDERED that the motion of Plaintiff Structural Contracting Serv., Inc. (Seq. No. 1) is granted in part and denied in part; and it is further
ORDERED that the motion of Plaintiff Structural Contracting Serv., Inc. is granted to the extent that Defendant URS Corporation — New York is collaterally estopped from litigating the issue over whether it timely submitted the Notice of Dispute to the Agency Head in accordance with the Dispute Resolution Provisions of the Prime Contract, Article 29, but in all other respects, Plaintiff's motion is denied; and it is further
ORDERED that the motion of Defendant URS Corporation — New York (Seq. No. 2) is granted in part and denied in part; and it is further
ORDERED that the motion of Defendant URS Corporation — New York is granted to the extent that Plaintiff's First, Second and Third Causes of Action are dismissed, but in all other respects, Defendant's motion is denied; and it is further
ORDERED that counsel for the parties shall appear before this Court for a conference on April 21, 2011 at 9:30 a.m., the purpose of which shall be the scheduling of a trial date; and it is further
ORDERED that the conference hereinabove provided for may not be adjourned without the prior written approval of the Court.
The foregoing constitutes the Decision and Order of this Court.