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Danco Elec. Contractors, Inc. v. Dormitory Auth. of N.Y.

Supreme Court, Appellate Division, First Department, New York.
Jun 5, 2018
162 A.D.3d 412 (N.Y. App. Div. 2018)

Summary

finding that "plaintiff should be excused from the non-occurrence of that condition because otherwise it would suffer a disproportionate forfeiture, and the occurrence of the condition was not a material part of the agreed exchange."

Summary of this case from PDL Biopharma, Inc. v. Wohlstadter

Opinion

6764 Index 450633/13

06-05-2018

DANCO ELECTRICAL CONTRACTORS, INC., Plaintiff–Appellant, v. DORMITORY AUTHORITY OF the STATE of New York, Defendant–Respondent.

Law Office of Eric M. Jaffe, Huntington (Eric M. Jaffe of counsel), for appellant. Holland & Knight, New York (Timothy B. Froessel of counsel), for respondent.


Law Office of Eric M. Jaffe, Huntington (Eric M. Jaffe of counsel), for appellant.

Holland & Knight, New York (Timothy B. Froessel of counsel), for respondent.

Friedman, J.P., Sweeny, Gische, Mazzarelli, Gesmer, JJ.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered May 9, 2017, which, insofar as appealed from, granted defendant's motion for summary judgment dismissing the second and third causes of action to the extent based on change order proposals 24, 46R, 54, 61, 91, 97, 99, 125, 133, 148, 152, 153, 155, 157, 159, 161, 162, 163, 167, 174, 193, 197, 199, 202, 210, 211, and 213, unanimously reversed, on the law, without costs, and the motion denied.

It is undisputed that plaintiff failed to satisfy a condition precedent to recovering disputed costs for extra work on which defendant forced price reductions. Although plaintiff gave detailed written statements contesting defendant's determinations of the fair and reasonable value of the extra work pursuant to section 8.01(B), it failed to give verified statements pursuant to section 11.03(A) of the contractual General Conditions.Nevertheless, we conclude that plaintiff should be excused from the non-occurrence of that condition, because otherwise it would suffer a disproportionate forfeiture, and the occurrence of the condition was not a material part of the agreed exchange (see Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co. , 86 N.Y.2d 685, 691, 636 N.Y.S.2d 734, 660 N.E.2d 415 [1995], citing Restatement [Second] of Contracts § 229 ). Defendant does not argue that plaintiff failed to document the costs of the claimed extra work, to provide timely notice of its claims for extra work, or to provide timely notice of its objections to defendant's rejections of and price reductions on the claimed extra work. Nor does it contend other than in conclusory terms that plaintiff's failure to submit verified written statements was prejudicial to it. Moreover, the cases on which defendant relies did not consider whether the failure to strictly comply with a condition precedent should be excused to avoid a disproportionate forfeiture under the circumstances of a case such as this, where the noncompliance is de minimis and defendant has shown no prejudice whatsoever (see e.g. Mezzacappa Bros., Inc. v. City of New York , 29 A.D.3d 494, 815 N.Y.S.2d 549 [1st Dept. 2006], lv denied 7 N.Y.3d 712, 824 N.Y.S.2d 604, 857 N.E.2d 1135 [2006] ; Schindler El. Corp. v. Tully Constr. Co., Inc. , 139 A.D.3d 930, 30 N.Y.S.3d 707 [2d Dept. 2016] ).

In view of the foregoing, we do not reach plaintiff's remaining contentions.


Summaries of

Danco Elec. Contractors, Inc. v. Dormitory Auth. of N.Y.

Supreme Court, Appellate Division, First Department, New York.
Jun 5, 2018
162 A.D.3d 412 (N.Y. App. Div. 2018)

finding that "plaintiff should be excused from the non-occurrence of that condition because otherwise it would suffer a disproportionate forfeiture, and the occurrence of the condition was not a material part of the agreed exchange."

Summary of this case from PDL Biopharma, Inc. v. Wohlstadter

concluding that the plaintiff was excused from the non-occurrence of a condition in part because its noncompliance was de minimis

Summary of this case from Transit Wireless, LLC v. Fiber-Span, Inc. (In re Fiber-Span, Inc.)

In Danco ElectricalContractors, the plaintiff-contractor failed to submit verified statements contesting the defendant's calculations of the amounts that the defendant would pay for extra work that the plaintiff had completed pursuant to a series of change orders.

Summary of this case from CityPlace Retail, L.L.C. v. Wells Fargo Bank

In Danco Elec. Contractors (162 AD3d at 413), the plaintiff contractor failed to satisfy a condition precedent to recovering disputed costs for extra work.

Summary of this case from Travelers Cas. & Sur. Co. of Am. v. Erie Canal Harbor Dev. Corp.
Case details for

Danco Elec. Contractors, Inc. v. Dormitory Auth. of N.Y.

Case Details

Full title:Danco Electrical Contractors, Inc., Plaintiff-Appellant, v. Dormitory…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Jun 5, 2018

Citations

162 A.D.3d 412 (N.Y. App. Div. 2018)
162 A.D.3d 412
2018 N.Y. Slip Op. 3935

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