Opinion
219 CA 19–00335
03-20-2020
Roger DOYLE, Plaintiff–Appellant, v. George A. NOLE and Son, Inc., Defendant–Respondent.
LONGSTREET & BERRY, LLP, FAYETTEVILLE (MICHAEL J. LONGSTREET OF COUNSEL), FOR PLAINTIFF–APPELLANT. HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR DEFENDANT–RESPONDENT.
LONGSTREET & BERRY, LLP, FAYETTEVILLE (MICHAEL J. LONGSTREET OF COUNSEL), FOR PLAINTIFF–APPELLANT.
HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, a subcontractor on a construction project, commenced this action seeking compensation, under several legal theories, for extra work performed on the project. He appeals from an order granting defendant's motion for summary judgment dismissing the complaint.
Initially, we note that plaintiff does not address in his brief the propriety of the dismissal of his claims for recovery under theories of quantum meruit or account stated, and thus plaintiff has abandoned any issue with respect thereto (see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
With respect to the remaining claims, we conclude that defendant met its initial burden on the motion (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). "It is well settled that [c]ontract clauses that require the contractor to promptly notice and document its claims made under the provisions of the contract governing the substantive rights and liabilities of the parties ... are ... conditions precedent to suit or recovery" ( Accadia Site Contr., Inc. v. Erie County Water Auth., 115 A.D.3d 1351, 1352, 983 N.Y.S.2d 387 [4th Dept. 2014] [internal quotation marks omitted] ), and "a condition precedent is ‘an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ " ( MHR Capital Partners LP v. Presstek, Inc., 12 N.Y.3d 640, 645, 884 N.Y.S.2d 211, 912 N.E.2d 43 [2009] ; see Accadia Site Contr., Inc., 115 A.D.3d at 1352, 983 N.Y.S.2d 387 ). Here, defendant established that the parties entered into a written subcontract for a construction project and that defendant paid plaintiff the full amount due under the subcontract plus additional amounts for extra work that was pre-approved by defendant. Defendant further established that the subcontract provided that plaintiff would be compensated only for extra work that had been previously approved in writing by defendant's principal, that plaintiff was required to submit written notice of claim for payment for such extra work within 10 days of receiving notice that the extra work was required, and that plaintiff's "claim for price adjustment shall be waived" if no such written notice of claim was timely provided. Finally, defendant established that plaintiff neither received a written change order for the extra work that is the subject of this action nor submitted a timely notice of claim regarding such work.
Plaintiff failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Even assuming, arguendo, that the document that plaintiff prepared and allegedly showed to defendant's principal was sufficient to constitute a written claim within the meaning of the contract, we conclude that, by "failing to submit any evidence demonstrating which work was performed pursuant to the original fixed price contract, and which work was performed in addition to the work contemplated in the original contract, plaintiff failed to establish [his] right to recover for the extra work performed" ( Ludemann Elec., Inc. v. Dickran, 74 A.D.3d 1155, 1156, 903 N.Y.S.2d 532 [2d Dept. 2010] ). Consequently, plaintiff failed to "raise an issue of fact whether [he] performed the extra work with the implied or express promise that [he] would be paid for it over and above the subcontract amount" ( Adonis Constr., LLC v. Battle Constr., Inc., 103 A.D.3d 1209, 1210–1211, 959 N.Y.S.2d 346 [4th Dept. 2013] ).
Finally, we conclude that plaintiff failed to submit evidence that would raise a triable issue of fact "that defendant, by its words or conduct, waived the written notice of claim provision or told plaintiff that the claim did not have to be in writing" ( Kingsley Arms, Inc. v. Sano Rubin Constr. Co., Inc., 16 A.D.3d 813, 815, 791 N.Y.S.2d 196 [3d Dept. 2005] ).
We have considered plaintiff's remaining contentions and conclude that they lack merit.