Opinion
24683/08.
Decided April 7, 2009.
MCCULLOUGH, GOLDBERGER STAUDT, LLP, By: Patricia W. Gurahain, Esq., Attorneys for Plaintiff, White Plains, New York.
ROSENBERG ESTIS, P.C., By: Lori Anker Nott, Esq., Attorneys for Defendants, One Bryant Park, LLC, and Tishman Construction Corporation of New York, New York, New York.
Defendants One Bryant Park, LLC and Tishman Construction Corporation of New York ("Defendants") move to dismiss:
Pursuant to a Stipulation of Discontinuance dated December 16, 2008, the action was discontinued, without prejudice, as to Defendant Bank of America, N.A.
(1) all of the causes of action alleged in the Complaint (First-Eleventh) on the grounds that there is a defense based on documentary evidence (CPLR 3211[a][1]);
(2) all of the causes of action alleged in the Complaint (First-Eleventh) on the grounds that each cause of action fails to state a claim upon which relief may be granted (CPLR 3211[a][7]); and
(3) the Tenth and Eleventh Causes of Action on the grounds that they fail to meet the specificity requirements of CPLR 3016.
Plaintiff Century-Maxim Construction Corp. ("Plaintiff" or "Century-Maxim") opposes the motion.
FACTUAL BACKGROUND
This action was initiated by the filing of a Summons and Complaint on or about November 3, 2008 (Exhibit A to the Affirmation of Lori Anker Nott, Esq. dated January 9, 2009 ["Nott Aff."] [hereinafter "Complaint"]). Plaintiff is the concrete trade contractor on the construction of a 52-story "Crystalline Skyscraper . . . known as the Bank of America Tower (the "Project")" (Complaint at ¶ 5), located in midtown Manhattan on Sixth Avenue between 42nd and 43rd Streets. Defendant Bryant is the developer of the Project and Defendant TIshman is the Construction Manager. This suit arises out of Plaintiff's claims that Defendants, among other things, breached the construction contract the parties entered into on December 1, 2004 for a price of $61.5 million ( see Ex. B to Nott Aff. [hereinafter "Contract"]).
Plaintiff alleges that because the Project's design involved uncharted design areas ( e.g., a design to withstand high explosives, vehicle bombs and plane attacks involving "heavy steel framework at the center of the building that was encased in ultra-high strength concrete forming protective walls [protective core walls'] that surround the central core of the building"), Tishman (the Project's Construction Manager) represented at various pre-and post-bid discussions "that Century-Maxim's work would be completed in three separate phases with the work on the first phase being the most intensive and the work on the third phase being more typical and with a suspension or slow down between the first and second phase to allow Century-Maxim sufficient time to catch up' with the steel contractor" (Complaint at ¶ 20). Plaintiff alleges that the parties anticipated the concrete work to take between 24-27 months, with the first and second phases to take between 12-15 months and the third phase to take 12 months ( id. at ¶ 25). Plaintiff claims that the schedule as originally envisioned "had sufficient float built into it as well as slowed or suspended periods of steel erection to offset any unanticipated difficulties arising from the unusual and new construction means and methods" ( id. at ¶ 26). Plaintiff claims that from the outset, the schedule was delayed six months through no fault of its own, but Defendants "ignored the starting delay and directed Century-Maxim to accelerate its work by increasing crew size and working overtime in order to complete the project on the ending date set forth in the Contract" ( id. at ¶ 31), did not extend the date for the completion of the work as required by paragraph 26 of the Contract ( id. at ¶ 62), and that Tishman "directed the steel contractor to eliminate the slow periods or work suspension periods for steel erection as originally planned and represented to Century-Maxim" ( id. at ¶ 34). According to
Plaintiff, because the New York City codes and regulations required Plaintiff to be "less than ten floors behind the steel contractor at all times," and given the accelerated schedule Defendants imposed on all the trade contractors, including the steel contractor, as well as Defendants' deletion of the suspension periods for the steel erection, Plaintiff "was forced to work six days a week and to work overtime and to bear the direct cost of overtime pay [in excess of $6 million] and the loss of productivity caused by worker fatigue [approximately $11 million]" ( id. at ¶¶ 40-43). Plaintiff also alleges that Defendants required it to do 500 visits of "comeback" work in an amount totaling approximately $5 million, which was "unreasonable and could not have been anticipated at the time that Century-Maxim entered into the Contract" ( id. at ¶ 58). Plaintiff seeks to recover approximately $22 million in damages it claims to have suffered as a result of, among other things, Defendants' accelerated work schedule.
The Complaint asserts eleven causes of action. The First Cause of Action asserts breach of contract based on, inter alia, Defendants' failure to provide compensation for the premium time work. The Second Cause of Action asserts breach of contract based on, inter alia, Defendants' failure to pay for the $11 million in extra work consisting of $700,000 in "extras", $5 million in "premium time" and $4.5 million in "comeback work." The Third Cause of Action is an account stated based on Defendants' acceptance without objection of Plaintiff's invoices and tickets for premium work. The essence of the Fourth Cause of Action is that Defendants "disrupted and interfered with Century-Maxim's work to such an extent that the work was made more costly" ( id. at ¶ 82). The Fifth Cause of Action asserts that there were excusable delays affecting the critical path of the schedule which Defendants failed to excuse through an extension of the completion date and which damaged Plaintiff through the acceleration of the construction schedule. The Sixth Cause of Action alleges that Defendants' breached the implied covenant of good faith and fair dealing by unilaterally and without Plaintiff's consent modifying the construction scheduled by decreasing Plaintiff's time to perform making the contract "commercially infeasible" for Plaintiff to perform. The Seventh Cause of Action asserts that Defendants accelerated the contract work to such an extreme that Defendants constructively abandoned the Contract, entitling Plaintiff to rescind it and to be paid the reasonable value of the work it performed. The Eighth Cause of Action for Unjust Enrichment is asserted against Defendants based on the "additional and more costly services . . . [Plaintiff provided] than contemplated by the Contract. . . ." ( id. at ¶ 120). The Ninth Cause of Action asserts a claim of "Reformation/Equitable Adjustment" based on Plaintiff's assertion that "[t]he uncontemplated, unreasonable revised and accelerated work schedule significantly increased the cost to Century-Maxim to perform the contract work" and rendered it "inequitable to force Century-Maxim to bear [its] full and significant cost" such that the contract should be rescinded and its original price reformed and/or equitably adjusted to adequately compensate Plaintiff ( id. at ¶ 127). The Tenth Cause of Action asserts a claim of negligence against Tishman based on "acts and omissions that [were] inconsistent with the contract requirements, duty of care, statutory duties, industry standards, custom and practices and the implied covenant of good faith and fair dealing ( id. at ¶ 133[d]). The Eleventh Cause of Action alleges that Tishman made negligent misrepresentations concerning the timing and sequencing of the work causing damage to Plaintiff.
Although Plaintiff claims to have submitted invoices and tickets for premium time, comeback work and extras to Bryant and Tishman on a regular basis (Complaint at ¶ 78), it is only the invoices and tickets for premium work that Defendants are alleged to have accepted without objection (Complaint at ¶ 79).
While Plaintiff does not expressly state that it wishes to rescind the Contract, the heading on the Seventh Cause of Action invokes the word "Rescission" as well as the phrase "Quantum Meruit."
A. Defendants' Contentions in Support of Motion
In support of their motion to dismiss the Complaint, Defendants submit an affirmation from their counsel, Lori Anker Nott, Esq., wherein Ms. Nott summarily describes that "Plaintiff entered into a contract dated December 1, 2004 with Defendants for the performance of the concrete work at the Project. . . . for a price of $61.5 million" which is the subject of the present action for which Plaintiff is seeking in excess of $22 million in damages (Nott Aff. at ¶¶ 6-7). Ms. Nott also attaches a copy of the Complaint and copies of the relevant portions of the Contract. In their Memorandum of Law ("Dfts' Mem. of Law"), Defendants argue:
(1) Plaintiff's First Cause of Action which asserts various breaches of contract must be dismissed because, inter alia, the alleged breaches are contradicted by the plain language of the contract;
(2) Plaintiff's Second Cause of Action should be dismissed because it is duplicative of the First Cause of Action, and, further because the allegations that there was an oral agreement to perform extra work is barred based on the contract which prohibits any oral modifications without an agreement in writing signed by the party to be charged;
(3) Plaintiff's request for attorneys' fees must be dismissed because there is no express provision for the recovery of attorneys' fees in the Contract (Dfts' Mem. of Law at 15-16);
(4) Plaintiffs' Third Cause of Action for an account stated fails to state a cause of action because "[a]n account stated cannot be made an instrument to create liability when none otherwise exists. Rather, an account stated assumes the existence of some indebtedness between the parties or an express agreement to treat the statement in question as an account stated . . . A cause of action alleging an account stated cannot be utilized simply as another means to attempt to collect under a disputed contract" ( id. at 16), and, in any event, the Complaint fails to allege Defendants' receipt and retention of Plaintiff's invoices for either comeback work or extras (only premium work) without
objection within a reasonable time;
(5) Plaintiff's Fourth Cause of Action for Disruption/Interference is simply a restatement of part of its First Cause of Action (which must be dismissed because the claims are barred by the Contract's terms) wherein Plaintiff alleges that Defendants breached their contractual obligations not to hinder and their duty to control and coordinate the various trades;
(6) Plaintiff's Fifth Cause of Action for Constructive Acceleration is duplicative of its First Cause of Action's assertions of start delay and acceleration which are precluded by the Contract's terms, and for the further reason that Plaintiff failed to provide the requisite notice (which pursuant to the Contract's terms must be sent by registered or certified mail, return receipt requested) that it intended to pursue a constructive acceleration claim (Dfts' Mem. of Law at 19, citing 5 Bruner O'Connor Construction Law § 15:99 [2008]);
(7) Plaintiff's Sixth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing must be dismissed because it is based on the same allegations of start delay and acceleration that are barred by the Contract's terms, and further, because it is duplicative of its First Cause of Action for Breach of Contract ( id. at 20);
(8) Plaintiff's Seventh Cause of Action for Rescission/ Quantum Meruit, Eighth Cause of Action for Unjust Enrichment and Ninth Cause of Action for Reformation/Equitable Adjustment must dismissed because (a) "a party cannot maintain an action for rescission and for breach of contract because they are inconsistent, alternative remedies" and (b) "the existence of a valid and enforceable contract governing a particular subject matter precludes recovery in quasi contract for events arising out of the same subject matter" ( id. at 21-22); and
(9) Plaintiff's Tenth Cause of Action for Negligence and Eleventh Cause of Action for Negligent Misrepresentation against Tishman must be dismissed because, inter alia, (a) Plaintiff's negligence claim does not include an allegation that Tishman violated a legal duty independent of the Contract, and (2) the Contract's merger clause specifically negates that Plaintiff relied on any representations other than those contained in the Contract, (3) the claims fail to satisfy the particularity requirements of CPLR 3016(b) ( id. at 22-24).
The crux of Defendants' argument rests on the Contract's terms that appear to bar many, if not all, of the claims asserted by Plaintiff. Thus, Defendants argue that Plaintiff's claim that it relied on various representations concerning the timing/sequence of its work is barred by two separate merger clauses to the effect that Plaintiff has not relied on any representations not expressly contained in the contract (Contract at ¶ 41, and Rider A at 5). Defendants further argue that Plaintiff's claim of a three-month start delay is barred by the schedule in the Contract which specifically provides, inter alia, that the Plaintiff shall be prepared to commence its work "on or about the 3rd Quarter of 2005, or at such later date as directed by Construction Manager provided that the work of others has advanced sufficiently to permit such a start" and that Plaintiff was to "maintain and follow the spacing and schedule of the structural steel construction" (Dfts' Mem. of Law at 5-6, citing Contract, Rider A at 19). Defendants contend that "the Contract specifically contemplated that the commencement of the work could be later' than the third quarter of 2005' and that the work would thereafter proceed in relation to the steel erection. Further, the Contract specifically contemplated that Plaintiff would be responsible for all costs, including overtime costs, associated with that schedule. The Contract established that Plaintiff agreed to this scheduling and that it was built into the $61.5 million Contract price" ( id. at 9 [emphasis in original]). In any event, Defendants point out that the Contract expressly bars Plaintiff from seeking damages for delay ( id., citing Contract at ¶ 26).
Defendants maintain that Plaintiff's allegation that Defendants accelerated the schedule is likewise without merit since the Contract defines acceleration as the Owner requesting that the work be performed with greater speed than was contracted for and Plaintiff is merely alleging that Defendants wrongfully ignored the starting delay and directed Plaintiff to "accelerate its work by increasing crew size and working overtime in order to complete the project on the ending date set forth in the Contract" ( id. at 10, quoting Complaint ¶ 31 [emphasis in original]). And that the claim fails because there's no allegation that Plaintiff "received a written Order' from the Owner in accordance with the Contract" ( id. at 11, citing Contract at ¶ 29).
Plaintiff's claim for comeback work in an amount of approximately $5 million must be dismissed because "[t]he Contract plainly states that the comeback work for which Plaintiff is seeking to recover its costs is included in the $61.5 million Contract price" ( id. at 12 [emphasis in original], citing Contract Rider A at 2 [¶ 12], 8, 11 [¶¶ 2g, 3], 19 [¶ 6]).
Defendants argue that Plaintiff's claim for extra work fails both because the Contract requires that all extra work must be documented with "written order signed by the Owner," which Plaintiff has failed to allege as having been received and, further, that Plaintiff does not allege that Defendants demanded Plaintiff to perform extra work and instead relies wholly on the additional costs incurred because of the alleged start delay and acceleration ( id. at 14).
B. Plaintiffs' Contentions in Opposition
In opposition to Defendants' motion, Plaintiff submits an Affidavit from its President, Charles Alvarez. In it, Mr. Alvarez points out that while Defendants rely on the Contract in support of their motion to dismiss, Defendants fail to attach the complete Contract to their motion since the Contract specifically refers to plans, specifications and a schedule, which are not annexed (Affidavit of Charles Alvarez, sworn to January 30, 2009 ["Alvarez Aff."] at ¶ 2).
Regarding Plaintiff's claim that Defendants accelerated the schedule through compressing the time period from 27 months to 21 months, Mr. Alvarez contends that by alleging that Defendants directed that the schedule be accelerated, the Complaint adequately alleges a claim of acceleration and it is not necessary for the Complaint to refer to a written order of acceleration (Alvarez Aff. at ¶ 4). Further, Mr. Alvarez avers that he believes discovery will enable Plaintiff to produce documentation sufficient to satisfy the writing requirement for the acceleration demand because he was in attendance at numerous meetings where "defendants ordered acceleration of Century-Maxim's work and advised that Century-Maxim must work overtime and must work six days per week or face termination and default" ( id. at ¶ 5). Further, Mr. Alvarez avers that Tishman sent Plaintiff a letter in June 2006 which confirmed the prior order of acceleration. Alternatively, Mr. Alvarez submits that the requirement for the writing may be waived based on their course of conduct ( id. at ¶ 6). In this regard, Mr. Alvarez avers that he was "told repeatedly that Century-Maxim's accelerated work and significant commitment to meeting the owners' desired completion date was appreciated and Century-Maxim would be compensated . . . for its extraordinary efforts" ( id. at ¶ 7). Mr. Alvarez also states that he relied on its prior dealings with Tishman on other projects wherein he "was told not to worry [he] would be paid, [he] went ahead and did the work and [he] was in fact paid" ( id. at ¶ 8).
Plaintiff is actually alleging a compression from 27 months to 19 months — a six month start delay and Defendants' deletion of the two-month suspension of work by the steel contractor to allow Plaintiff to catch-up.
Mr. Alvarez contends that Plaintiff's breach of contract claim is fully supported by the "initial project schedule, which was shown to [him] both before and after the Contract was executed . . . which had sufficient float [ i.e., steel contractor's suspension of work for a minimum of two months] in it to accommodate the learning curve that would be present given the new and innovative nature of this project" ( id. at ¶ 9) and that "[t]he actual construction schedule was fundamentally different from the initial contract schedule in that the project started about six months late and the two month suspension of the steel contractors work was omitted" ( id. at ¶ 10). Mr. Alvarez contends that while Defendants have failed to produce this schedule, the Contract refers to the schedule in numerous places and is therefore incorporated by reference and forms a part of the Contract ( id. at ¶ 9). Plaintiff argues that the provisions cited by Defendants which prohibit the award of delay damages are irrelevant since they deal with "the impact of an elongated, rather than a compressed schedule" ( id. at ¶ 12). And the provisions to which Defendants cite having to do with Plaintiff having to absorb overtime costs to timely complete the project "have no relevancy to the facts" and "[t]he plain meaning of such language can not be construed to apply to a situation in which a contractor is ordered to work overtime to meet a different, shorter schedule [e.g. accomplishing a 27 month schedule in 21 or 19 months]" ( id.) Alternatively, Plaintiff contends that "even if the facts can be massaged to fit into a delay scenario there are contractual provisions which would entitle the contractor to an extension of time if delay was caused by the owner, the construction manager or another contractor. . . . [Alvarez] requested an extension of time on Century-Maxim's behalf and it was denied" ( id.).
On the issue of the comeback work, Plaintiff contends that because the provision in the Contract regarding comeback work is exculpatory and was drafted by Defendants, it should be construed most strongly against them and the plain meaning of the Contract and industry standards would not support Defendants' position that Plaintiff was required to "return over 500 times for small, inefficient pieces of comeback' work. . . ." ( id. at ¶ 13; Plf. Mem. of Law at 11).
In response to Defendants' motion to dismiss the constructive acceleration claim, Mr. Alvarez avers
[i]t is undisputed that the project work started about six months later than projected through no fault of Century-Maxim. The defendants had knowledge of this and, despite demand by Century-Maxim, refused to grant an extension of time. It is also undisputed that the steel contractor did not suspend its work as originally anticipated and shown in the initial schedule. This also compressed the time within which Century-Maxim was ordered to complete its work. To accomplish this compressed schedule, Century-Maxim was ordered, under threat of default, to accelerate its performance by employing overtime for practically the entire duration of the project. Thus, Century-Maxim's claim is not for delay damages but for the costs associated with the acceleration of its work to meet the shortened schedule ( id. at ¶ 15).
Finally, Plaintiff argues that the contractual provisions upon which Defendants rely do not deal with Defendants' duty to engage in fair dealing, which was breached by Defendants ordering Plaintiff to work on an accelerated and compressed basis under threat of termination. Plaintiff then inconsistently claims that at the same time Defendants were threatening Plaintiff with termination, they were also "indicat[ing] in words and substance that Century-Maxim would be compensated for working the accelerated and compressed schedule and meeting the owners' completion goals" ( id. at ¶ 14).
In its Memorandum of Law, Plaintiff largely reiterates the arguments made in the affidavit of its President, Mr. Alvarez. On this issue of the Contract's merger clause, Plaintiff claims it is not a bar since the representations upon which it is alleged to have relied are included in the Contract in the "schedule", which was not provided by Defendants in their moving papers, and the provision in the Contract regarding the anticipated suspension of work by the steel contractor (Pltf. Mem. of Law at 6, citing Rider A at 10). And that the no-damage for delay clause only bars "costs associated with escalation of prices due to an elongated duration or a delayed start" and has no application to the damages Plaintiff seeks because Defendants reduced the Contract's time frame by refusing to give a time extension.
Plaintiff contends that "if you follow the Defendants' logic out to the extreme, the Construction Manager could have ordered a start date two years later, in the third quarter of 2007, instead of 2005, and Century-Maxim still would have had to compete its work, without additional compensation for acceleration, by early 2008. Clearly, this is not what was contemplated by the Contract. The Contract language can not be construed as placing a burden on the Contractor to work overtime for almost the entire duration of the project" (Pltf. Mem. of Law at 10).
Plaintiff claims that it has sufficiently alleged a constructive acceleration claim by asserting that it was forced to work overtime for almost the entire length of the project and compress its schedule by over 8 months. On its claim of disruption, Plaintiff asserts that it is viable since it is based on Defendants' compressed schedule which interfered with Plaintiff's ability ( e.g., reduced Plaintiff's productivity) to perform by requiring overtime and premium time.
According to Plaintiff, the elements of a constructive acceleration claim are: (1) the contractor encountered excusable delay affecting the critical path; (2) the owner knew of the excusable delay and failed/refused to grant an extension of time; (3) there was an act or statement by the owner that could be construed as an acceleration order; and (4) the contractor accelerated its performance (Pltf. Mem. of Law at 17).
Plaintiff defines disruption as "a reduction in expected productivity of labor and equipment or a loss of efficiency and is compensable if it is beyond the normal range inherent in a construction process and caused by events within the control of the other party or events outside the control of both parties" (Pltf. Mem. of Law at 18).
In support of its position that the late start should result in a late end date, Plaintiff refers to the contract provision that states
[t]he Contractor shall be prepared to complete all field installation 3rd quarter of 2007, or at a later date if required by the progress of other trades at no additional cost . . . There will be no escalation of price allowed for duration of the Contract, nor will there be any additional cost due to the delayed start or protracted duration of installation as required by the progress of the project (Pltf. Mem. of Law at 11).
Plaintiff asserts it has stated a viable claim of breach of the implied covenant of good faith and fair dealing which is not duplicative of its breach of contract claim because its essence is that by compressing the construction schedule, Defendants caused Plaintiff to lose the fruits of the Contract (Pft. Mem. of Law at 20).
As to Plaintiff's account stated claim, Plaintiff claims that it has adequately stated a right to recovery on its premium time, comeback work, and extras, based on the averments found in the Alvarez Affidavit to the effect that Defendants, through words and conduct, indicated that Plaintiff would be compensated for its additional costs, and that Plaintiff thereafter submitted its overtime and premium time costs which Defendants held for many months without objection of any kind ( id. at 22).
Finally, Plaintiff argues that it has asserted valid claims for quantum meruit, unjust enrichment and equitable adjustment because
where there is a bona fide dispute as to the existence of a contract, or where the contract does not cover the dispute in issue, a plaintiff may proceed upon a theory of quasi-contract as well as breach of contract and will not be required to elect his or her remedies . . . Here, it would be premature to dismiss these claims or force plaintiff to elect its remedies since there has been no discovery and documents that form a part of the Contract have not as yet been produced by defendants, who are in possession of same. If the contract does not cover all portions of the dispute and Century-Maxim relies upon the breach of the implied covenant of good faith and fair dealing, the other equitable remedies pled would likewise be relevant and applicable ( id. at 21).
In support, Plaintiff cites Hochman v LaRea ( 14 AD3d 653 [2d Dept 2005]) and Zuccarini v Ziff-Davis Media, Inc. ( 306 AD2d 404 [2d Dept 2003]).
Alternatively, Plaintiff requests that it be granted leave to replead (Pltf. Mem. of Law at 5, n. 1) and/or that the motion be denied, without prejudice to renewal after the completion of paper discovery, as there are facts unavailable to it that would defeat Defendants' motion — to wit, "project schedules, minutes of meetings, orders and other documents [that] exist in support of its claim but that said documentary evidence is in the possession, custody and control of defendants and defendants' agents" ( id. at 16).
C. Defendants' Reply
In Reply, Defendants' point out that based on Plaintiff's opposition, Plaintiff has abandoned a number of claims. First, Plaintiff has put forth no opposition to the dismissal of the negligence and negligent misrepresentation claims against Tishman (Tenth and Eleventh Causes of Action) as well as the claim for attorney's fees. Second, Defendants contend that Plaintiff does not oppose the dismissal of the Second Cause of Action.
The Court does not agree with Defendants' conclusion that Plaintiff submits to the dismissal of all of the Second Cause of Action. The essence of the Second Cause of Action is that as a result of Defendants' acts in (1) failing to adjust the completion date by adding the six months Plaintiff was delayed in starting its work, (2) failing to have the steel contractor's work suspended for two months so that Plaintiff could catch up, and (3) making inefficient/disruptive requests for comeback work, Defendant's altered the scope of the contract ( e.g., accelerated the schedule without paying Plaintiff and causing in excess of $5 million dollars in comeback work). The Second Cause of Action seeks damages for extra work outside the scope of the contract — to wit (1) $700,000 in extras, (2) $5 million in premium time charges due to the accelerated schedule, and (3) $4.5 million in comeback work. Plaintiff's opposition deals directly with the second and third aspects to this claim. Thus, the only subcategory of the Second Cause of Action that Plaintiff does not directly address is the claim for $700,000 in extras.
Defendant distills what remains of Plaintiff's Complaint based on its opposition by stating that
Plaintiff no longer seeks relief under Article 26 for "delay" (Complaint at ¶¶ 62 63) and no longer seeks damages for "extra work" (Complaint at ¶¶ 70-76) . . . Instead, Plaintiff speaks only to two claims against Defendants for "breach of contract" in this action. The first is a claim for breach of the "acceleration" clause under Article 29 of the Contract for which Plaintiff claims damages consisting of "premium time". The second is a claim for breach of the provisions relating to "comeback work". Plaintiff alternatively argues that if it is not entitled to damages based upon the express Contract provisions governing these two claims, then it is entitled to recover the damages for the breach of contract under a claim for "breach of the covenant of good faith and fair dealing" (Affirmation of Andrew I. Bart, Esq. dated February 5, 2009 ["Bart Aff."] at ¶¶ 18-19).
It is Defendants' contention that because the original acceleration claim found in Plaintiff's Complaint relies on oral representations as to a schedule which are barred by the Contract's merger clause, Plaintiff, now, in its opposition, turns to a purported missing schedule. Defendants assert that this argument fails for the primary reason that the Contract lists those documents that were a part thereof and no where does it refer to this missing "schedule" as being a part of the Contract (Bart Aff. at ¶ 30). Further, Defendants point out that the schedule referred to in the Contract is the schedule found in Rider A, Section E, which shows that Defendants agreed "to proceed with the timing of the work in relation to the steel erection, not a specific date. . . ." ( id. at ¶ 35, citing Contract, Rider A at 19). Defendants argue that "[t]here is simply nothing in the Contract to support Plaintiff's claim that this was a 27 month' contract with a two month suspension' for Plaintiff to catch up' with the steel contractor. The plain language of the Contract precludes Plaintiff from seeking to introduce documents which are outside the four corners of the Contract. The schedule is set forth in the Contract and Plaintiff is precluded from introducing this missing' document to alter its terms" ( id. at ¶ 43). Defendants argue that Plaintiff's attempt to vary the terms of the unambiguous Contract through the introduction of parol evidence should not be countenanced.
Defendants point out that Plaintiff omitted language from the Contract provision it cited as supporting the two month suspension in the steel erection, which, accordingly to Defendants, actually shows that the suspension was for Plaintiff's work in order to allow the steel contractor to move ahead ( see Affirmation of Andrew I. Bart, Esq. dated February 5, 2009 at ¶¶ 41-43).
Defendants respond to Plaintiff's "logical extreme" example by stating that "[i]n fact, if the Project commenced in 2007 instead of 2005 . . . Plaintiff's time to perform would be precisely the same as if the Project started in 2005. Under the Contract, Plaintiff is obligated to proceed in a manner that follows the spacing and schedule of the steel construction. . . .'" ( id. at ¶ 45, quoting Plf's Mem. of Law at 10). Furthermore, Defendants argue that there was no need to alter the end date based on a delay in the start date since there was no definitive end date — instead, the Contract provided" shall be prepared to compete all field installation 3rd quarter of 2007, or at a later date if required by the progress of other trades at no additional cost. . . .'" ( id. at ¶ 57, quoting Contract, Rider A at 19).
On the issue of a purported waiver of the requirement that there be a written acceleration order, Defendants rely on the Contract's no waiver clause which precludes Plaintiff from asserting that Defendants waived their rights to written notice ( id. at ¶ 53). And Defendants contend that the no-damage for delay prohibits Plaintiff's claim for acceleration since "a Contract provision barring all claims for damages due
to delay equally bar acceleration' claims which arise from delays" ( id. at ¶ 61).
In their Reply Memorandum of Law, Defendants elaborate on this point by stating that "its acceleration' claim is actually a delay' claim where it argues in its Memorandum of Law that there was an acceleration' because Plaintiff was not given an extension' under the Article 26 delay' clause. (See Alvarez Affidavit at ¶ 12 and Memorandum of Law at p. 9.) Plaintiff cannot label the same conduct which is based upon a claim of delay' as an acceleration' in order to circumvent the bar on its recovery of delay' damages" (Dfts' Reply Mem. of Law at 8).
Defendants disagree that the comeback work clause is exculpatory, and, in any event, where the language is plain and unambiguous, it must be enforced according to its terms, which in this case precludes Plaintiff from seeking compensation for comeback work ( id. at ¶¶ 67-69).
With regard to Plaintiff's remaining claims (breach of the covenant of good faith and fair dealing, account stated, interference, constructive acceleration, and quasi contract/rescission) Defendants reiterate the points made in their opening papers.
Defendants reassert the deficiencies of Plaintiff's breach of the implied covenant of good faith and fair dealing claim both on its merits ( i.e., that it is based on Plaintiff's claim of acceleration which is contradicted by the plain terms of the contract) and from a procedural standpoint ( i.e., that because the allegations that form the basis of the breach of the covenant of good faith and fair dealing are indistinguishable from Plaintiff's breach of contract claim, they are insufficient to allege a breach of the implied covenant of good faith and fair dealing as a matter of law).
Defendants oppose Plaintiff's request that it be granted leave to conduct paper discovery to uncover the two documents which it contends are necessary to support its acceleration claim ( i.e., the missing schedule and the June 2006 letter from Tishman). According to Defendants, the missing schedule is not a part of the Contract and is therefore irrelevant. Defendants argue that the June 2006 letter "which purportedly supports [the] claim that Defendants demanded timely completion of the job under the Contract (e.g., did not give [Plaintiff] extra' time) is likewise of no consequence because that would not constitute an acceleration under the Contract" ( id. at ¶ 63).
THE LEGAL STANDARDS ON A MOTION TO DISMISS
The legal standards to be applied in evaluating a motion to dismiss are well-settled. In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action ( Cooper v 620 Prop. Assoc., 242 AD2d 359 [2d Dept 1997], citing Weiss v Cuddy Feder, 200 AD2d 665 [2d Dept 1994]). If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail ( 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152; Cooper, supra, 242 AD2d at 360). The court's function is to" accept . . . each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiff's ability ultimately to establish the truth of these averments before the trier of the facts'" ( Cooper, 242 AD2d at 360, quoting 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509). The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference ( 511 West 232nd Owners Corp., supra).
Where the plaintiff submits evidentiary material, the Court is required to determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one ( Leon v Martinez, 84 NY2d 83; Simmons v Edelstein , 32 AD3d 464 [2d Dept 2006]; Hartman v Morganstern , 28 AD3d 423 [2d Dept 2006]; Meyer v Guinta, 262 AD2d 463 [2d Dept 1999]). On the other hand, a plaintiff may rest upon the matter asserted within the four corners of the complaint and need not make an evidentiary showing by submitting affidavits in support of the complaint and, if the allegations are sufficient to state all of the necessary elements of a cognizable cause of action, will not be penalized for not making an evidentiary showing in support of the complaint ( Kemp v Magida, 37 AD3d 763 [2d Dept 2007]; see also Rovello v Orofino Realty Co., 40 NY2d 633, 635-636).
Affidavits may be used to preserve inartfully pleaded, but potentially meritorious claims; however, absent conversion of the motion to a motion for summary judgment, affidavits are not to be examined in order to determine whether there is evidentiary support for the pleading ( Rovello, supra; Pace v Perk, 81 AD2d 444, 449-450 [2d Dept 1981]; Kemp, supra; Tsimerman v Janoff , 40 AD3d 242 [1st Dept 2007]). Affidavits may be properly considered where they conclusively establish that the plaintiff has no cause of action ( Taylor v Pulvers, Pulvers, Thompson Kuttner, P.C. , 1 AD3d 128 [1st Dept 2003]; M L Provisions, Inc. v Dominick's Italian Delights, Inc., 141 AD2d 616 [2d Dept 1988]; Fields v Leeponis, 95 AD2d 822 [2d Dept 1983]).
To the extent that Plaintiff's claims turn on the Contract, the actual provisions of the Contract — rather than Plaintiffs' characterization of the terms in their pleading — are controlling ( see 805 Third Ave. Co. v M.W. Realty Assoc., 58 NY2d 447, 451; Marosu Realty Corp. v Community Preserv. Corp. , 26 AD3d 74, 82 [1st Dept 2005]). Therefore, "[w]here a written contract . . . unambiguously contradicts the allegations supporting the breach of contract, the contract itself constitutes the documentary evidence warranting the dismissal of the complaint under CPLR 3211(a)(1)" ( 159 Broadway NY Assocs. L.P. v Bodner ,14 AD3d 1 [1st Dept 2004]; see also Taussig v Clipper Group, L.P. , 13 AD3d 166 , 167 [1st Dept 2004], lv denied 4 NY3d 707 [on a CPLR 3211(a)(1) motion to dismiss, "[t]he interpretation of an unambiguous contract is a question of law for the court, and the provisions of a contract addressing the rights of the parties will prevail over the allegations in a complaint"]).
To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim ( AG Cap. Funding Partners, L.P. v State Street Bank and Trust Co. , 5 NY3d 582, 590-591; 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152; Held v Kaufman, 91 NY2d 425, 430-431; Leon v Martinez, 84 NY2d 83, 88; Cohen v Nassau Educators Fed. Credit Union , 37 AD3d 751 [2d Dept 2007]; Sheridan v Town of Orangetown , 21 AD3d 365 [2d Dept 2005]; Teitler v Max J. Pollack Sons, 288 AD2d 302 [2d Dept 2001]; Museum Trading Co. v Bantry, 281 AD2d 524 [2d Dept 2001]; Jaslow v Pep Boys — Manny, Moe Jack, 279 AD2d 611 [2d Dept 2001]; Brunot v Joe Eisenberger Co., 266 AD2d 421 [2d Dept 1999]).
If the documentary evidence disproves an essential allegation of the complaint, dismissal is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action ( Snyder v Voris, Martini Moore, LLC , 52 AD3d 811 [2d Dept 2008]; Peter F. Gaito Architecture, LLC v Simone Dev. Corp. , 46 AD3d 530 [2d Dept 2007]).
The documentary evidence upon which Defendants rely is the Contract. "Construction of an unambiguous contract is a matter of law, and the intention may be gathered from the four corners of the instrument and should be enforced according to its terms" ( Beal Sav. Bank v Sommer , 8 NY3d 318 , 324; Kass v Kass, 91 NY2d 554, 566; Taussig, 13 AD3d at 167; 1550 Fifth Avenue Bay Shore, LLC v 1550 Fifth Avenue, LLC, 297 AD2d 781, 783, lv denied 99 NY2d 505). "[T]he aim is a practical interpretation of the expressions of the parties to the end that there be a realization of [their] reasonable expectations'" ( Brown Bros. Elec. Contr., Inc. v Beam Constr. Corp., 41 NY2d 397, 400). In examining a contract to find the parties' intent as to a particular section, a court should read "the entirety of the agreement in the context of the parties' relationship," rather than isolating distinct provisions out of an entire agreement ( Matter of Riconda, 90 NY2d 733, 738). Thus, "[t]he rules of construction of contracts require [the court] to adopt an interpretation which gives meaning to every provision of a contract or, in the negative, no provision of a contract should be left without force and effect" ( Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46; see also Excess Ins. Co. Ltd. v Factory Mut. Ins. , 3 NY3d 577, 582 [a contract is to be interpreted so that no portion of the contract is rendered meaningless]; Columbus Park Corp. v Department of Hous. Preserv. Dev. of City of New York, 80 NY2d 19, 31; Two Guys from Harrison-New York, Inc. v S.F.R. Realty Assoc., 63 NY2d 396, 403). A contract is unambiguous if "on its face [it] is reasonably susceptible of only one meaning. . . ." ( Greenfield v Philles Records, Inc., 98 NY2d 562, 570). And parol evidence cannot be used to create an ambiguity where the words of the parties' agreement are otherwise clear and unambiguous ( Innophos, Inc. v Rhodia, S.A. , 38 AD3d 368 , 369 [1st Dept 2007], affd 10 NY3d 25).
THE LEGAL VIABILITY OF THE COMPLAINT
A. Plaintiff's Tenth and Eleventh Causes of Action and its Claim for Attorneys' Fees Should Be Dismissed
Defendants argue that Plaintiff's claims against Tishman for negligent misrepresentation and negligence are deficient as a matter law because, inter alia, there was no breach of duty outside of the contractual duty to support the negligence cause of action ( see Heffez v L G Gen. Constr., Inc. , 56 AD3d 526 [2d Dept 2008]), and the claim for negligent misrepresentation fails because (1) Plaintiff fails to allege a special relationship of trust or confidence not predicated upon a duty arising from the contract, and (2) Plaintiff fails to satisfy the heightened pleading requirement of CPLR 3016. Defendants seek dismissal of Plaintiff's claims for attorneys' fees, found in the Second Cause of Action and the ad damnum clause, on the ground that the Contract does not provide for the recovery of attorneys' fees in the event of breach.
It would appear that in addition to the lack of specificity in the allegations relating to Tishman's alleged negligent misrepresentation, the merger clause in the Contract would be a complete bar to this claim as well because as a matter of law, Plaintiff could not have detrimentally relied on the representations allegedly made by Tishman outside of the Contract's terms ( see Bando v Achenbaum, 234 AD2d 242, 244 [2d Dept 1996], lv denied 90 NY2d 920 [" While a general merger clause will not operate to bar parol evidence of fraud in the inducement . . . where the parties expressly disclaim reliance on the representations alleged to be fraudulent, parol evidence as to those representations will not be admitted'"]; Stan Winston Creatures, Inc. v Toys "R" Us, Inc., 2004 NY Slip Op 50969 (U), 4 Misc 3d 1019 (A) at *6 [Sup Ct NY County 2004] [merger clause in contract caused any claim of reliance on alleged negligent misrepresentations unreasonable since it was "inconsistent with clear, unambiguous, and fully integrated terms of the parties' written agreement"]). Similarly, as Plaintiff has pointed to no contractual provision or statute entitling it to recover attorneys' fees in the event it is successful in this action, such a request for attorneys' fees is insufficient as a matter of law and should be dismissed ( Chapel v Mitchell, 84 NY2d 345; Braithwaite v 409 Edgecombe Ave. HDFC, 294 AD2d 233 [1st Dept 2002]).
Because Plaintiff failed to oppose the dismissal of these claims and Defendants' arguments are legally sound, the Court shall dismiss the Tenth and Eleventh Causes of Action and Plaintiff's claims for attorneys' fees.
B. Plaintiff's Causes of Action for Breach of Contract (First, Second, Fourth, and Fifth Causes of Action) Must Be Dismissed as the Plain Language of the Contract Bars These Claims
The essence of Plaintiff's First and Second Causes of Action is that Defendants breached the Contract by (1) failing to adjust the end date for Plaintiff's performance by the eight months the 27-month schedule was compressed, which occurred as a result of Defendants' direct order of acceleration or Defendants' constructive acceleration; (2) failing to pay Plaintiff for the premium work and extra work caused by the accelerated schedule and failing to pay Plaintiff for the 500 returns of comeback work which was not within the contemplation of the parties. The Fourth Cause of Action for Disruption and Interference is a variation on the themes found in the First and Second Causes of Action and simply asserts that Defendants breached the Contract by interfering with the sequence and manner of the work as originally planned by causing Plaintiff to work in a disjointed and accelerated manner ( i.e., Defendants caused Plaintiff to have to engage in premium work [non-economical work] and excessive comeback work). And the Fifth Cause of Action for Constructive Acceleration is again based on the allegations that Defendants failed to acknowledge the excusable delay ( i.e., the six-month start delay and the deletion of the two-month suspension of work by the steel contractor) by adjusting the end date and instead Defendants forced Plaintiff "to put extra laborers on the job, work overtime, use more equipment and employ inefficient means and methods in order to meet TIshman's demands that it accelerate its performance or be defaulted under the Contract" (Complaint at ¶ 88).
It appears that the end date contemplated in the Contract was not met ( i.e., Plaintiff's completion in 2007) and was extended since Plaintiff avers that it "only recently completed its work and even after filing this complaint, continued to perform comeback work on the project" (Alvarez Aff. at ¶ 7).
"[W]here the party for whom a contract is being performed obstructs the contractor's efforts and . . . frustrates the contractor's operation, such conduct serves to excuse the contractor's non-performance and constitutes a breach of the parties' agreement" ( Farrell Heating, Plumbing, Air Conditioning Contr., Inc. v Facilities Dev. and Improvement Corp., 68 AD2d 958, 959 [3d Dept 1979]).
While Plaintiff has stated causes of action for breach of contract, Defendants have submitted documentary evidence that definitively establishes Defendants' defense to such claims as a matter of law. Accordingly, the First, Second, Fourth and Fifth Causes of Action should be dismissed.
The elements of a claim for breach of contract are (1) the existence of a contract, (2) due performance of the contract by plaintiff, (3) breach of the contract by defendant, and (4) damages resulting from the breach ( Coastal Aviation, Inc. v Commander Aircraft Co., 937 F Supp 1051, 1060 [SD NY 1996], affd 108 F3d 1369 [2d Cir 1997]).
In its Complaint, Plaintiff primarily relies on representations allegedly made by Tishman regarding the schedule for Plaintiff's performance as well as the two-month suspension of work by the steel contractor, as the basis for its breach of contract claims. However, in its opposition, perhaps recognizing the infirmity of this argument
based on the clear and unambiguous merger clause found in the Contract, Plaintiff shifts its focus to a purported written schedule which it claims forms a part of the Contract, but which is conspicuously absent from the Contract annexed to Defendants' moving papers, as the primary basis for its breach of contract claims. However, based on the plain language of the Contract, Plaintiff's claims do not withstand scrutiny.
Paragraph 41 of the Contract provides:
This contract constitutes the entire agreement between the parties. The Contractor affirms and agrees and represents and warrants that only the statements, representations and promises expressly contained in this Contract have been relied upon by him and have induced him to enter into this Contract. No provision of this contract shall be changed or modified, nor shall this Contract be discharged, in whole or in part, except by an agreement in writing signed by the party against whom the change, modification or discharge is claimed or sought to be enforced, nor shall any waiver of any of the conditions or provisions of this contract or of any of the rights of either parties hereunder be effective or binding unless such waiver shall be in writing and signed by the party claimed to have given, consented to or suffered the waiver. . . .
Plaintiff is correct that "[a] contract can be comprised of separate writings or documents if the writings make it clear that they are to be read in conjunction with other writings to determine the intent of the parties" ( Dietrich v Chemical Bank, 115 Misc 2d 713, 715 [Sup Ct New York County 1981]). Nevertheless, here, while the Contract specifically lists several documents and riders which are to be considered a part of the Contract, there is no reference to the schedule claimed by Plaintiff and, indeed, the schedule that is contained in the body of the Contract completely negates Plaintiff's claims that it was subject to a 24-27 month schedule. The Contract states "[t]his contract constitutes the entire agreement between the parties" (Contract at ¶ 41) and that "[a]ll of the following Contract Documents or Riders to this Agreement shall be considered a part hereof
Rider "A", General Addendum, dated December 1, 2004
Rider "B", List of Drawings and Specifications, dated October 15, 2004 and November 4, 2004
Rider "C", Alternates and Unit Prices, dated December 1, 2004
Rider "D", Temporary Services for Construction Purposes, dated November 4, 2004
Rider "E", Non-Discrimination and Affirmative Action, dated December 29, 2003
Rider "F", Owner controlled Insurance Program, dated December 1, 2004 . . . Project Site Safety Program, dated November 11, 2004 and Empire State Development Corp. Letter of Tax Exemption, dated August 18, 2004 (Contract at 16).
While Plaintiff contends that the Contract refers to a missing schedule and that the Contract can only be understood by incorporating the missing schedule within the Contract's terms, the Court finds that the Contract is all-encompassing and includes a schedule for which Plaintiff was subjected. Thus, the Contract provides a "Time of Performance" provision which provides:
This Contractor represents and warrants that he has sufficient manpower, equipment and materials available to expedite all phases of his work schedule. Work in any area shall commence upon 48 hours notice from the Construction Manager. Work shall proceed in sequence and direction as required by the Construction Manager and as provided for in the Time and Performance Section of Rider "A" (Contract at 16).
The Rider "A" Time and Performance Section provides
4. The Contractor shall be prepared to commence the engineering phase of the work immediately and its field work on or about the 3rd quarter of 2005, or at such later date as directed by Construction Manager provided that the work of others has advanced sufficiently to permit such a start. The Contractor will provide multiple equipment, work in shifts, weekend work, expedite material procurement, expedite material delivery, shop drawing overtime, and any other cost to accomplish the following milestone dates:
a. Contractor to mobilize and set up the jump formwork system at Level C3 within a three (3) week period. Contractor to be provided a level, suitable area to stage this work.
b. Complete all concrete work through top floor level XX weeks after completion of the metal deck. Contractor shall provide all labor and material to produce one floor every 4-work days including associated shearwalls and stairs.
c. This Contractor shall maintain a construction schedule as follows:
1. Concrete deck and shearwall placement directly follows placement of metal deck and is no further than 6 floors below the highest level of the metal deck. Concrete on metal deck shall be no greater than 6 floors ahead of the concrete shearwalls as required by the Structural Engineer for stability.
2. Core slab construction and fill in of gap between shearwalls and concrete on metal deck is no further than 8 floors below the highest level of the metal deck.
3. Concrete stair construction is no further than 10 floors below the highest level of metal deck.
d. Contractor shall put forth its best efforts in order to substantially complete the work within six (6) weeks of topping out of structural steel construction exclusive of mobilization, demobilization, pads, curbs, fills and other non structural elements.
e. Contract Price includes all overtime, weekend and holiday work required to compensate, maintain and follow the spacing and schedule of the structural steel construction regardless of delays of any cause, including weather.
The Contractor shall be prepared to complete all field installation 3rd quarter of 2007, or at a later date if required by the progress of other trades at no additional cost. The Contractor will provide multiple equipment, work in shifts, weekend work, expedite material procurement, expedite material delivery, shop drawing overtime, and any other cost to accomplish the schedule. There will be no escalation of price allowed for the duration of the Contract, nor will there be any additional cost due to the delayed start or protracted duration of installation as required by the progress of the project.
5. The Contractor agrees that "Time is of the Essence", with respect to the performance of the Contractor's work and all dates and time periods pertaining to this Contract, and it understands that in order to accomplish the aforementioned Schedule, including intermittent milestones, it may be required to work its crew and equipment overtime on regular work days and on Saturdays and Holidays, the cost of which is included in the Contract Price. The Contractor shall pay the cost of standby trades, provided such overtime is required due to the Contractor's failure to maintain schedule. . . .
6. The Contractor understands that work of this trade may not be continuous and that he may be required to work out of sequence at the direction of the Construction Manager. There shall be no charges for comeback time or out of sequence work, provided Contractor's field forces and equipment are still on site and work is accessible to and within the capacity of the onsite equipment (Rider "A" at 19 [emphasis added]).
Another provision of the Contract specifically addressed the fact that Plaintiff's work was to be sporadic and that the Contract price included the downtime caused by such an interrupted work schedule:
The Contractor understands that this work is not continuous and will be performed at varying times throughout the course of this project. The Contract Price includes all cost associated with multiple mobilization, off hours work, and any other hardship costs incurred in the prosecution of the work (Contract, Rider A at 10).
Another provision of the Contract leaves the discretion with the Owner as to when work should begin in relation to the work of other contractors by providing:
The Contractor recognizes that efficient construction of the project requires that all the work thereon be coordinated and therefore agrees to accept the determination of the Owner as to the time when work of the Contractor shall begin and the manner in which it shall progress in connection with the other work involved in the said construction. It further agrees that the direction of the Owner with respect thereto shall be complied with fully and promptly (Contract at ¶ 25).
Given the foregoing provisions, the Contract's terms directly contradict Plaintiff's claims that there was a 27-month schedule upon which Plaintiff relied that was unjustifiably compressed by Defendants without due compensation to Plaintiff for its premium work and extra work. Instead, it is clear that while there may have been discussions concerning a projected time frame of 24-27 months for Plaintiff's work, this was simply a projected schedule and that rather than having a specific schedule set forth in the Contract, Plaintiff negotiated the obligation to follow the progress of the other trades and to dedicate whatever manpower was required in order to keep up with that pace.
Plaintiff attempts to avoid the clear and express provisions of the Contract that it signed by pointing to the possible existence of a different schedule, one that varies from the schedule that the parties set forth in their Contract. However, "absent fraud or mutual mistake, where the parties have reduced their agreement to an integrated writing, the parol evidence rule operates to exclude evidence of all prior or contemporaneous negotiations between the parties offered to contradict or modify the terms of their writing" ( Davis v Davis, 266 AD2d 867, 868 [4th Dept 1999], lv denied 94 NY2d 761).
Moreover, as noted previously, the Contract has a merger clause in which Plaintiff represented and warranted that the only statements, representations and promises made to it were those expressly set forth in the Contract itself (Contract at ¶ 41). New York courts strictly enforce such merger clauses ( see, e.g., Jarecki v Shung Moo Louie, 95 NY2d 665, 669 ["The purpose of a merger clause is to require the full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to alter, vary or contradict the terms of the writing"] [citations omitted]; Daiichi Seihan USA v Infinity USA, Inc., 214 AD2d 487, 488 [1st Dept 1995] ["Any attempt by defendant to alter the plain meaning of the contract by alleged oral modifications fails as a result of the contract's integration clause"] [citations omitted]).
Accordingly, evidence of prior negotiations that were not reduced to an executed written agreement is inadmissible for the purpose of varying or contradicting the terms of the License Agreement ( see, e.g., Bero Contr. Dev. Corp. v Vierhile , 19 AD3d 1160, 1161 [4th Dept 2005] [since language in agreement was clear and unambiguous and included a merger clause, parties could not introduce "parol evidence, including evidence of prior negotiations between the parties"]). Such evidence similarly is inadmissible for the purpose of introducing ambiguities into integrated agreements ( see, e.g., Corman v LaFountain , 38 AD3d 706, 707 [2d Dept 2007] ["When an agreement is clear and complete on its face, it should be enforced according to its terms without looking to extrinsic evidence to create ambiguities"]).
Thus, to the extent that Plaintiff is claiming that there is another or different schedule that was extant at or prior to the making of the Contract but is not included within the documents that are specifically enumerated as constituting the Contract ( see Alvarez Aff. at ¶ 9), that contention fails as an impermissible effort to alter, vary, or modify the Contract through the use of parol evidence.
Plaintiff's attempt at providing support for its claim that Contract included a two-month suspension period for the steel contractor's work is devoid of merit. Indeed, the provision cited does not support Plaintiff's contention and instead calls for a suspension of Plaintiff's "shearwall and core construction operations until the structural steel has progressed sufficiently to allow for the resumption of this work by. . . . [Plaintiff]" (Contract, Rider A, at 10).
The full text of this provision is:
The phasing of this Contractor's work is as follows:
a. Superstructure Concrete Contractor will place concrete tower core walls, slabs and stairs to a level at or above the Ground Floor, as directed by the Construction Manager. This will occur either after the below grade core steel has been placed, or, in the event the below-grade core steel is eliminated, before the Structural Steel Contractor begins erection of the tower.
b. Superstructure Concrete Contractor will then allow the structural steel to progress sufficiently as to allow this Contractor to resume work with the self-jumping shearwall forming system.
c. Structural Steel Contractor shall resume steel erection of the tower, completing the steel to the 6th Floor (or other level as jointly determined), to allow resumption of the concrete placement using the self-jumping system. Typical steel tiers shall be installed at a rate of (1) one tier of steel every 8 working days. Contract Price includes all cost to suspend the shearwall and core construction operations until the structural steel operation has progressed sufficiently to allow for resumption of this work by the Superstructure Concrete Contractor (Contract, Rider A at 10).
Equally unavailing is Plaintiff's claim that Defendants failed to adjust the schedule given the six month delay in Plaintiff's start date as well as the deletion of the two month suspension period for the work of the steel contractor. Plaintiff is correct that the Contract provides for a means of adjusting the schedule due to the fault of Owner, Construction Manner, Architect or any other contractor. Paragraph 26(a) of the Contract provides
Should the Contractor be delayed by the fault of the Owner, Construction Manager, Architect or any other contractor, or by abnormal weather conditions, then the time fixed for the completion of the work shall be extended for a period equivalent to the time so lost. The Owner, Construction Manager or Architect shall not be held responsible for any loss or damage sustained by the Contractor through delay caused by the Owner, Construction Manager, Architect or any other contractor, or by abnormal weather conditions, or by any other cause (Contract at ¶ 26[a]).
However, Plaintiff takes this language out of context by failing to reference to the subject qualification that Plaintiff submit a written notice of such delay to the owner and the failure to do so would constitute a waiver of such claim:
None of the foregoing causes of delay shall be deemed a valid excuse for failure to start, perform or complete the work or deliveries at the times specified, unless the Contractor has notified the Owner in writing of the alleged cause of delay within forty-eight (48) hours after the commencement thereof (Contract at ¶ 26[c]).
Indeed, Paragrah 26 (a) is the classic no-damage for delay provision found in many a construction project contract, which courts have found to bar the types of claims asserted by Plaintiff herein ( Universal/MMEC, Ltd. v Dormitory Auth. of State of New York , 50 AD3d 352, 353 [1st Dept 2008] ["Plaintiff's claims for loss of labor productivity due to . . . excessive overtime work . . . are precluded by the prime contract's no damages for delay' clause"]; Commercial Elec. Contr., Inc. v Pavarini Constr. Co. , 50 AD3d 316, 318 [1st Dept 2008] [Plaintiff's claims for delay damages alleging gross negligence based on defendant's unanticipated improper scheduling and organization of subcontractors, changes to work, and failure to provide temporary heating were dismissed because the delays were exempt from the no-damage for delay clause and the defendant's "conduct amounted to nothing more than inept administration or poor planning," the delays alleged were reasonably foreseeable, and the delay was not long enough to qualify as an abandonment of the contract]; Modern Mosaic Ltd. v Sweet Assoc., Inc. , 23 AD3d 880 [3d Dept 2005] [contractor's postponement of start date did not constitute breach of contract given the unambiguous provision in the subcontract that the schedule was subject to change]; T.J.D. Constr. Co. v City of New York, 295 AD2d 180 [1st Dept 2002] [trial court properly awarded summary judgment to City based on no damages for delay provision; testing done between the two phases of the contract was explicitly envisioned and no issue of fact was raised as to whether the delay was caused by defendant's bad faith or gross negligence in planning the project and scheduling the work or that the seven month delay was so unreasonable as to connote defendant's abandonment]; DeNova Cas. Co. v Liberty Mut. Ins. Co., 540 F Supp 2d 476 [SD NY 2008] ["plaintiff's equitable adjustment claim is clearly barred by § 6.5 of the Subcontract. This section precludes any relief, other than an extension of time, for delays caused by [contractor] or [owner]. Plaintiff's equitable adjustment claim covers loss of productivity, materials escalation, labor escalation, extended field overhead, and extended equipment rental. It is obvious to the Court that plaintiff's equitable adjustment claim' is really just a masked damages for delay' claim"]).
Plaintiff's contention that it is not seeking damages for delay and therefore, the exculpatory no-damages for delay clause does not come into play is a distinction without a difference. As the New York Court of Appeals recognized in Corinno Civetta Constr. Corp. v City of New York ( 67 NY2d 297), delay damages include both the costs involved because it takes longer to complete a job or, alternatively, as in this case, the overtime and additional costs that are expended to compete the job on time ( Corinno Civetta Constr. Corp., 67 NY2d at 313-314). In either case, "[t]he claims are claims for delay and the exculpatory clause was drafted and included in the contract to bar them" ( id.; see also Siefford v Housing Auth. of the City of Humbolt, 223 NW2d 816 [Neb Sup Ct 1974]). Likewise, here, Plaintiff's claim for damages based on an accelerated schedule would be barred by the no-damage for delay clause.
Furthermore, the Contract expressly recognized that the Contractor may have to provide premium (overtime) work to the extent the Contractor was not meeting the schedule milestones set forth the Contract. For example, the Contract provides:
Should the Contractor fail, refuse or neglect to supply a sufficiency of workmen or to deliver the materials with such promptness as to prevent the delay in the progress of the work, or fail in any respect diligently to commence and prosecute the work and proceed to the point to which the Contractor should have proceeded hereunder, or if the different parts thereof are not commenced prosecuted, finished, delivered or installed on time as herein specified or if the Contractor shall fail in the performance of any of the covenants of this contract, the Owner shall have the right to direct the Contractor, upon three (3) days' written notice, at the Contractor's cost and expense, to furnish such additional labor and to expedite deliveries of materials (or the Owner may furnish such labor and expedite such deliveries at the cost to the Contractor), which labor or expediting shall, in the Owner's opinion, be sufficient to speed up and complete the work as herein provided.
If such additional labor shall not be available, the Owner shall have the right to direct the Contractor, at the latter's own cost and expense, to work overtime to such an extent as will be sufficient, in the Owner's opinion, to speed up and complete the work as herein provided (Contract at ¶ 26 [d] [e]).
Similarly, in the schedule found in Rider A, Plaintiff expressly agreed that it was required to
complete all field installation 3rd quarter of 2007, or at a later date if required by the progress of the other trades at no additional cost. The Contractor will provide multiple equipment, work in shifts, weekend work, expedite material procurement, expedite material delivery, shop drawing overtime, and any other cost to accomplish the schedule. There will be no escalation of price allowed for duration of the Contract, nor will there be any additional cost due to the delayed start or protracted duration of installation as required by the progress of the project (Contract, Rider A at 19 [¶ 4] [emphasis added]).
Finally, while the Contract recognized that the Contractor would have a right to charge for premium work in the event of the Owner's acceleration of the contract schedule, the Contract specifically required a written acceleration order from the Owner as the quid pro quo to Plaintiff's right receive additional compensation:
If the Owner shall desire the Work of the Contractor hereunder to be performed with greater speed than is herein contracted for, the Contractor shall, without affecting or abridging the rights of the Owner set forth in any Article hereof, upon receipt of a written order from the Owner, employ overtime Work as so ordered. Direct cost of the premium time for all labor utilized by the Contractor in such overtime work as shown on the time slips checked and approved each day by the Construction Manager shall be paid by Owner to the Contractor, but no such overhead, supervision costs, commission or other costs shall be charged thereon (Contract at ¶ 29).
The Contract had a similar writing requirement for extra work orders:
The Owner, without invalidating this contract, may order extra work or make changes by altering, adding to or deducting from the work, the Contract Price to be adjusted accordingly. The Contractor shall not make any alterations or omit anything, or perform additional or extra work, except upon written order signed by the Owner. . . . No request for payment for extra work will be honored unless accompanied by such written order. . . .
***
Any work included in this contract shall be performed by the Contractor at no extra cost to the Owner despite any order from the Owner to the Contractor which might contemplate such work as an extra (Contract at ¶ 36).
Even without the no-damage for delay clause, Plaintiff would still be precluded from recovery since it has not alleged any written orders signed by Defendants for extra work and/or acceleration. While Plaintiff suggests discovery might produce sufficient documents to satisfy the writing requirement, Plaintiff has utterly failed to plead that the extra work alleged was the subject of a written change order, which is necessarily fatal to its claim because "the contract's specific requirement for the use of written change orders precludes the award of damages beyond the contract price and any written changes thereto" ( Charles T. Driscoll Masonary Restoration Co. v County of Ulster , 40 AD3d 1289 , 1291 [3d Dept 2007]). Accordingly, "[t]he contract's notice and documentation requirements for extra work and delay damages are conditions precedent to plaintiff's recovery and the failure to strictly comply is deemed a waiver of such claims" ( F. Garofalo Elec. Co. v New York University, 270 AD2d 76, 80 [1st Dept 2000], lv dismissed 95 NY2d 825). And while Plaintiff has not alleged that Defendants had a course of conduct in not requiring a written order which excuses the writing requirement in this case, such an allegation would nevertheless fail based on the Contract's no waiver clause which provides:
Plaintiff's only argument concerning waiver by course of conduct is that Alvarez was "told repeatedly that Century-Maxim's accelerated work and significant commitment to meeting the owners' desired completion date was appreciated and the Century-Maxim would be compensated for its extraordinary efforts" ( id. at ¶ 7) and he relied on prior dealings on other project where he was assured payment and in fact paid.
[t]he failure of the Owner to insist in any one or more instances upon a strict compliance with any provision of this contract, or to exercise any option herein conferred, shall not be construed as a waiver or relinquishment of the right of the Owner thereafter to require a compliance with such provision of this contract, or a waiver of the right of the Owner thereafter to exercise such option, but such provision or option will remain in full force and effect (Contract at ¶ 30).
In an action substantially similar to this case, Justice Bernard Fried granted summary judgment to Defendant on Plaintiff's claims of fraud in the inducement and breach of contract based on its assertions that it relied on a sample construction schedule in preparing its bid which was not adhered to during construction and which caused damage to Plaintiff based on its inefficient performance of work and work being performed out of sequence ( Premier-New York, Inc. v Travelers Prop. Cas. Corp., 2008 NY Slip Op 51361[U], 20 Misc 3d 1115 [A] [Sup Ct NY County 2008]). In Premier-New York, the subcontract provided that Plaintiff would waive any claim to additional compensation based on, inter alia, disruption, acceleration or re-sequencing of work. There, like here, the subcontract contained a merger clause to the effect that "the contract contained the entire agreement between the parties" and "[n]o other agreements, representations. . . . shall be deemed to bind the Parties hereto" ( id. at * 3). Further, the subcontract contained a no-damage for delay provision which entitled plaintiff to an equitable extension of time — but not a claim for damages based on such delay. Again, in Premier-New York, as in this case, the subcontract contained a provision that the contractor could not charge for "comeback work" or out of sequence work. In that case, unlike this one, Plaintiff tried to shoehorn its claim to fit within one of the recognized exceptions set forth by the Court of Appeals in Corinno Civetta Constr. supra.
There, the Court held that "even with such a [no damage for delay] clause, damages may be recovered for: (1) delays caused by the contractee's bad faith or its willful, malicious or grossly negligent conduct (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee, and (4) delays resulting from the contractee's breach of a fundamental obligation of the contract" ( Corinno Civetta Constr. Corp., 67 NY2d at 309).
In finding that the subcontract's no-damage for delay clause barred the delay claims asserted by plaintiff, Justice Fried first remarked that no-damage for delay clauses are readily enforced by courts in New York because they evidence" the parties' "unmistakable intent" that . . . the contractor rather than the contractee is to absorb damages occasioned by contractee-caused delay'" ( id. at *5, quoting Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377).
And in response to plaintiff's claim of fraudulent inducement based on the purported schedule provided to plaintiff prior to its bid, Justice Fried held that plaintiff's reliance on the schedule was unreasonable as a matter of law and in so holding, stated
In that case, the construction schedule was referred to in the contract but was specifically identified as being a mere sample that was subject to change ( id. at *6).
a construction schedule, which is by definition a forward-looking document, and necessarily subject to amendment and revision as may be warranted by the continually changing nature of construction, cannot be characterized as
a representation, upon which reliance can be reasonably placed ( id. at *6).
Justice Fried found that plaintiff had also not raised a question of fact as to its claim of gross negligence or wilful misconduct. Further, that plaintiff's claims that the delays were not contemplated when it entered into the subcontract were directly refuted by subcontract's provisions, which discussed a potential class of causes for delay, thereby evidencing that the delays were contemplated by the parties. And, in any event, Plaintiff's delay claims were foreseeable and amounted to nothing more than allegations of poor contract administration. The court held that plaintiff also failed to raise a question of fact that the delay was caused by defendant's fundamental breach, especially since the contract provided it was subject to change:
The provisions included one confirming that the contractor's work may not be continuous and may be out of sequence and one prohibiting charges for comeback work.
[Plaintiff's] claim that the Sample . . . Schedule constituted a fundamental contractual obligation cannot be reconciled with the Subcontract's provisions. The Subcontract itself characterizes the construction schedule in question as a "sample," and further provides that the schedule is subject to change, and that [plaintiff's] work may be re-sequenced . . . The Subcontract further provides that [plaintiff's] commencement of work is contingent upon the status of work performed by others, and [plaintiff] will work when and where directed by [defendant]. Thus, [plaintiff] had notice from the outset that the schedule was subject to change ( id. at *16).
Like the subcontract found in Premier-New York, there are numerous provisions which directly refute Plaintiff's claims that Defendants wrongfully compressed a schedule that was made a part of the Contract. Instead, the Contract put Plaintiff on notice that its price had to include all increased costs to keep up with the schedule that would occur based on the progress of the other trades, as well as all comeback work. A comment by the United States Supreme Court is apropos of the present case:
Notably, there is no contention by Plaintiff that Defendants accelerated the other contractors (and paid them for the accelerated work) and, thereby, indirectly accelerated Plaintiff without payment.
Men who take $1 million contracts . . . are neither unsophisticated nor careless. Inexperience and inattention are more likely to be found in other parties to such contracts than the contractors, and the presumption is obvious and strong that the men signing such a contract . . . protected themselves against such delays as are complained of by the higher price exacted for the work" ( Wells Bros. Co. of New York v U.S., 254 US 83, 87 [1920]).
In Marriott Corp. v Dasta Constr. Co. ( 26 F3d 1057, 1068 [11th Cir 1994]) the Eleventh Circuit Court of Appeals commented:
Although these terms may seem one-sided, [the contractor] was aware of these provisions at the time it bid the contracts, and had the opportunity to increase its proposed contract prices to account for the risks it would be assuming. [The contractor] failed to seize upon this opportunity, and, in hindsight, made a pair of improvident bargains from which we are powerless to grant relief. It is not the function of the courts to "rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain" ( id. [citations omitted]).
The Court is not unmindful that Plaintiff undertook a $61.5 million Contract. To the extent that the problems complained of under these causes of action were made Plaintiff's problems by the terms of the Contract, Plaintiff agreed to assume them in exchange for the contract price. To the extent that Plaintiff assumed the problems but is now complaining that the compensation is not sufficient, Plaintiff is bound by the provisions it agreed to.
The above quoted contract provisions — and in particular, the no-damage for delay clause — bar Plaintiff's claims as a matter of law. Accordingly, Plaintiff's breach of contract claims (First, Second, Fourth and Fifth Causes of Action) shall be dismissed on the grounds that there is documentary evidence establishing a complete defense to these claims as a matter of law.
C. Plaintiff's Third Cause of Action for Account Stated
To state a cause of action of account stated, Plaintiff must allege defendant's receipt and retention of the subject statement of account without proper objection within a reasonable time ( see, e.g., Loheac v Children's Corner Learning Center , 51 AD3d 476 [1st Dept 2008]; Ruskin, Moscou, Evans Faltischek v FGH Realty Credit Corp., 228 AD2d 294, 295 [1st Dept 1996]; Citibank [SD] N.A. v Jones, 272 AD2d 815 [3d Dept 2000], lv denied 95 NY2d 764). This is predicated on the view that where an account is prepared and rendered, a person who receives it is bound to examine it; if the recipient fails to object within a reasonable time, the recipient becomes bound by the account, absent fraud, mistake or other equitable consideration ( see, e.g., Rosenman Colin Freund Lewis Cohen v Neuman, 93 AD2d 745, 746 [1st Dept 1983]). "An account stated may be unenforceable if fraud, ambiguity or other equitable considerations negate the binding force of the contract'" ( Silver Hill Hosp. v Rizzo, 1999 WL 447446 at * 7 [SD NY 1999], quoting Slavenberg Corp. v Cohen, 1986 WL 13467 at * 2 [SD NY 1986]).
Here, Plaintiff incorporates by reference the prior paragraphs of the Complaint and alleges that "invoices and tickets for premium time, comeback work and extras were submitted for payment to Bryant and Tishman on a regular basis throughout the Project . . . Bryant and Tishman accepted the invoices and tickets for premium work without objection. . . . Century-Maxim is entitled to payment for premium work, comeback work and extras in the approximate amount of eleven million dollars" (Complaint at ¶¶ 78-80).
With regard to the legal sufficiency of this cause of action, while Defendant is correct that because "[a]n account stated assumes the existence of some indebtedness between the parties, or an express agreement to treat a statement of debt as an account stated" ( Grinnell v Ultimate Realty, LLC , 38 AD3d 600, 600 [2d Dept 2007])," [a] cause of action alleging an account stated cannot be utilized simply as another means to attempt to collect under a disputed contract'" ( Ross v Sherman ,57 AD3d 758 [2d Dept 2008]), and while the cases upon which Plaintiff relies do not involve a dispute over the enforceability of the underlying contract ( see, e.g., Slavenburg Corp. v Cohen, 1986 WL 13467 [SD NY 1986]; Silver Hill Hosp. v Rizzo, 1999 WL 447446 [SD NY 1999]; Johnson Johnson Fin. Corp. v BSR Realty L.P., 1996 WL 546284 [ED NY 1996]), the Court finds that Plaintiff has just barely stated a cause of action for an account stated — at least with regard to the premium work — but not with regard to the comeback work and extras. The documentary evidence (the Contract) does not bar this claim and, given the legal standards to be applied on a motion to dismiss, the cause of action is sustained, as a pleading matter, but not with respect to the comeback work and extras.
In this regard, the Court notes that while Plaintiff does not specifically allege that Defendants failed to object to the invoices and tickets within a "reasonable time," other provisions of the Complaint allege that Plaintiff was regularly submitting such invoices and tickets throughout the Project's tenure, and that these invoices and tickets were never rejected by Defendants, so the reasonable time may be inferred ( see Complaint at ¶¶ 44-45).
Accordingly, Defendants' motion to dismiss the Third Cause of Action will be granted to the extent that Plaintiff's claim for an account stated on its extras and its comeback work is dismissed, but in all other respects, Defendants' motion will be denied.
D. Plaintiff's Causes of Action for Rescission/Quantum Meruit (Seventh Cause of Action), Unjust Enrichment (Eighth Cause of Action) and Reformation/Equitable Adjustment (Ninth Cause of Action) are Barred as There is a Contract Covering the Dispute in Question
To establish a claim in quantum meruit, a claimant must demonstrate (1) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services ( see, e.g., Miranco Contr., Inc. v Perel , 57 AD3d 956 [2d Dept 2008]; Candreva v Ultra Kote Applied Tech., Ltd. , 44 AD3d 601 [2d Dept 2007]; Tesser v Allboro Equip. Co., 302 AD2d 589 [2d Dept 2003]; 22A NY Jur 2d Contracts § 595). The doctrine of quantum meruit is used as a device for the prevention of unjust enrichment of one party at the expense of another in the absence of a valid contract (22A NYJur 2d Contracts, § 594). "To state a cause of action for unjust enrichment, a plaintiff must allege that it conferred a benefit upon the defendant, and that the defendant will obtain such benefit without adequately compensating plaintiff therefor" ( Smith v Chase Manhattan Bank, 293 AD2d 598, 600 [2d Dept 2002]).
The existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi-contract, such as by quantum meruit and unjust enrichment, for events arising out of the same subject matter ( see Goldman v Metropolitan Life Ins. Co. , 5 NY3d 561, 572; Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 388-389; R.I. Island House, LLC v. North Town Phase II Houses, Inc , 51 AD3d 890 [2d Dept 2008]; Shah v Micro Connections, Inc., 286 AD2d 433 [2nd Dept 2001]; West End Interiors, Ltd. v Aim Constr. Contr. Corp., 286 AD2d 250 [1st Dept 2001]). It is only where there is a bona fide dispute as to the existence of a contract, or a bona fide dispute as to whether the contract covers the dispute in question, that a plaintiff may proceed upon a theory of quasi-contract as well as breach of contract and will not be required to elect his remedies ( AHA Sales, Inc. v Creative Bath Prod., Inc. ,58 AD3d 6 [2d Dept 2008]; Hochman v LaRea , 14 AD3d 653 [2d Dept 2005]; Curtis Prop. Corp. v Greif Companies, 236 AD2d 237 [1st Dept 1997]). Likewise, when the complaint alleges an express, enforceable contract that controls the parties' relationship, a claim for unjust enrichment will be dismissed ( Zurakov v Register.Com, Inc., 304 AD2d 176, 182 [1st Dept 2003] ["[t]he motion court properly dismissed plaintiff's claim for unjust enrichment since there is no dispute that a written contract exists or that it covers the subject matter of plaintiff's claims"]). Quantum meruit/unjust enrichment may not be used to circumvent, and a court will not make an inference of any implied agreement which is destructive of, the express terms of the parties' contract" ( North Star Contr. Corp. v City of New York, 203 AD2d 214, 215 [1st Dept 1994]).
The cases cited by Plaintiff do not necessitate a different result. For example, Hochman v LaRea ( 14 AD3d 653 [2d Dept 2005]) is distinguishable since in that case, defendant's defense was that alleged oral agreement for loan involved usurious terms, which permitted plaintiff to proceed on both a theory of breach of contract and quantum meruit/unjust enrichment]. Likewise, in Zuccarini v Ziff-Davis Media, Inc. ( 306 AD2d 404 [2d Dept 2003]), defendant was disputing the enforceability of the contract under the Statute of Frauds, and therefore, it was appropriate for plaintiff to pursue the action based on both theories of breach of contract and quantum meruit/unjust enrichment.
To the extent that Plaintiff is asserting that Defendants' conduct in implementing the Contract was so unreasonably extreme as to permit Plaintiff to rescind it and then seek quantum meruit, Plaintiff's claim is governed by the rules laid out by the Court of Appeals in Clark-Fitzpatrick, supra:
Of course, a party may perform a contract under protest, and then sue for damages resulting from the second party's breach . . . Alternatively, where rescission of a contract is warranted, a party may timely rescind and seek recovery on the theory of quasi contract . . . It is impermissible, however, to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties ( Clark-Fitzpatrick, 70 NY2d at 389).
Here, Plaintiff has not alleged in its Complaint that it performed the Contract under protest. Nothing in the Complaint alleges that Plaintiff gave notice of a claimed breach of its intention to perform under protest and to sue for damages. On the other hand, Plaintiff has submitted an affidavit from its President (which may, as previously indicated, be considered as a basis for overcoming any pleading deficiency) to the effect that:
a) Plaintiff made demands for payments;
b) Defendants promised that payments would be forthcoming;
c) when the work "was substantially complete", Plaintiff was still being told that it would eventually be paid;
d) "as the project neared completion", Defendants became unresponsive;
e) Plaintiff has "only recently completed its work" and, even after commencement of the action, continued to perform "comeback" work (Alvarez Aff. at ¶ 7).
This action was commenced by filing on November 3, 2008. Giving Plaintiff the benefit of every legitimate inference, it may be inferred that Defendants received notice of a protest (in the form of the initiatory papers in this action) prior to the time that the work was fully completed. Whether Plaintiff's effort to rescind is "timely", or whether Defendants' alleged assurances of payment reasonably induced Plaintiff to refrain from giving notice earlier, appear to be factual questions, not properly resolvable on this motion.
Here, it is clear that the Contract, unless Plaintiff succeeds in rescinding it, expressly addresses Plaintiff's claims. Accordingly, as there is a contract governing the subject dispute, Plaintiff's causes of action for quantum meruit, equitable adjustment and unjust enrichment must be dismissed ( Grace Indus., Inc. v New York City Dept. of Transp. ,22 AD3d 262, 263 [1st Dept 2005], lv denied 6 NY3d 703), except that Plaintiff is given leave to replead a separate and distinct cause of action for rescission and a separate and distinct claim for quantum meruit (the viability of which is dependent upon Plaintiff's success on its rescission claim).
There are numerous provisions in the Contract wherein Plaintiff expressly acknowledged that it might be required to engage overtime work in order to keep pace with the schedule it would have to follow based on the progress of the steel erection. As such, this is not a case where a quantum meruit award is appropriate because it is based upon an additional agreement by the parties which can be said to constitute "a qualitative change in the nature of the work outside the contemplation of the contract" ( Charles T. Driscoll Masonry Restoration Co. v County of Ulster , 40 AD3d 1289 [3d Dept 2007]).
E. Plaintiff's Sixth Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing Fails to State a Cause of Action
The implied covenant of good faith and fair dealing between parties to a contract "embraces a pledge that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract'" ( 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 153, quoting Dalton v Educational Testing Serv., 87 NY2d 384, 389). Thus, courts view it as encompassing "promises which a reasonable person in the position of the promisee would be justified in understanding were included" ( 511 W. 232nd Owners Corp., 98 NY2d 153). Therefore, "the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship'" ( 511 W. 232nd Owners Corp., 98 NY2d at 153; Capital Z Fin. Serv. Fund II, L.P. v. Health Net, Inc. , 43 AD3d 100, 110 [1st Dept 2007] [breach of implied covenant of good faith and fair dealing cannot be used to circumvent the parties' express agreement or to create a free-floating duty unattached to the underlying legal document]).
In 511 West 232nd Street Owners Corp., the Court of Appeals affirmed denial of motion to dismiss a claim of breach of the implied covenant of good faith and fair dealing against a Sponsor who was claimed to have frustrated plaintiffs' ability to resell their shares by rejecting offers from prospective buyers and allowing the offering plan to lapse because the Sponsor's documentary evidence did not clearly refute these assertions and because in coop conversions, sponsors must meet high standards of good faith and fair dealing toward tenants. Another case upon which Plaintiff relies, Zurakov v Register.Com, Inc. ( 304 AD2d 176 [1st Dept 2003]) is inapposite because in that case, plaintiff had registered its domain name with defendant and while the parties agreement did not expressly provide for plaintiff's exclusive use of the domain name, the Court found that "the benefit to plaintiff of his contract with defendant would be rendered illusory if the effect of registering the domain name in his name were merely to have the domain name placed next to his name in some official record . . . and not to grant him exclusive use and control of it" and therefore, even if the agreement permitted a discretionary right of defendant to use his plaintiff's domain name, that did not insulate defendant from his duty of good faith and fair dealing.
Further, an independent cause of action for breach of the implied covenant cannot be maintained where the alleged breach is intrinsically tied to the damages allegedly resulting from a breach of contract ( The Hawthorne Group, LLC v RRE Ventures , 7 AD3d 320, 323 [1st Dept 2004]). Courts have held that "[t]he breach of the covenant of good faith and fair dealing . . . [is] properly dismissed . . . [when] it is merely a substitute for a nonviable breach of contract claim" ( Triton Partners LLC v Prudential Sec., Inc., 301 AD2d 411, 411 [1st Dept 2003], citing Murphy v American Home Prods. Corp., 58 NY2d 293; see also Parker East 67th Street Assoc., L.P. v The Minister, Elders and Deacons of Reformed Protestant Dutch Church of the City of New York, 301 AD2d 453 [1st Dept 2003], lv denied 100 NY2d 502).
Accordingly, because Plaintiff's claims are directly prohibited by the express language of the Contract and because Plaintiff's claim for breach of the implied covenant of good faith and fair dealing is duplicative of its breach of contract claim, Plaintiff's Sixth Cause of Action shall be dismissed ( Deer Park Enters., LLC v Ail Sys., Inc. ,57 AD3d 711 [2d Dept 2008]; R.I. Is. House, LLC v North Town Phase II Houses, Inc. , 51 AD3d 890, 896 [2d Dept 2008]; Pier 50 Studios L.P. v Chelsea Piers, L.P. , 27 AD3d 217, 218 [1st Dept 2006]; Empire State Bldg. Assoc. v Trump, 247 AD2d 214 [1st Dept 1998], lv dismissed in part, denied in part 92 NY2d 885; Canstar v J.A. Jones Constr. Co., 212 AD2d 452 [1st Dept 1995]).
F. Plaintiff's Request that Motion be Denied without Prejudice to Permit Discovery
While CPLR 3211(d) affords a court "the discretion to deny a motion to dismiss without prejudice to renewal after discovery if it appears that facts essential to justify opposition may exist but cannot then be stated' . . . if the complaint fails to state a cause of action as a matter of law and no amount of discovery can salvage the claim, it must be dismissed and no discovery is warranted" ( Herzog v Town of Thompson, 216 AD2d 801, 802 [3d Dept 1995]; see also Silverstein v Westminster House Owners, Inc. , 50 AD3d 257, 258 [1st Dept 2008] [plaintiff could not avoid dismissal of breach of implied covenant of good faith and fair dealing by "speculating that discovery would provide the necessary evidence"]). Such is the case here. No amount of discovery will afford Plaintiff the right to vary the Contract's explicit terms, which bar the claims asserted herein. Accordingly, Plaintiff's request that the motion be denied pending paper discovery is not warranted.
CONCLUSION
ORDERED that the motion of Defendants One Bryant Park, LLC and Tishman Construction Corporation of New York to dismiss the First, Second, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and Eleventh Causes of Action is granted in all respects; and it is further
ORDERED that the motion of Defendants One Bryant Park, LLC and Tishman Construction Corporation of New York to dismiss the Third Cause of Action is granted as to claims for comeback work and extras and is otherwise denied; and it is further
ORDERED that the motion of Defendants One Bryant Park, LLC and Tishman Construction Corporation of New York to dismiss the Seventh Cause of Action is granted, with leave being granted to Plaintiff Century-Maxim Construction Corp. to replead a separate and distinct cause of action for rescission and a separate and distinct claim for quantum meruit (the viability of which is dependent upon Plaintiff's success on its rescission claim); and it is further
ORDERED that Plaintiff shall interpose an amended complaint, containing only the portion of the Third Cause of Action found viable herein and only the causes of action as to which repleading is permitted, by not later than April 29, 2009; and it is further
ORDERED that counsel shall appear before this Court, Courtroom 105, on May 1, 2009 at 9:30 a.m. for a Preliminary Conference in this action; and it is further
ORDERED that no adjournment of the Preliminary Conference or extension of the time to interpose an amended complaint shall be granted without further order of this Court.
The foregoing constitutes the Decision and Order of the Court.