Opinion
12207 Index No. 400897/11 Case No. 2020-02955
10-27-2020
FIVE STAR ELECTRIC CORP., Plaintiff–Respondent, v. A.J. PEGNO CONSTRUCTION CO., INC. /TULLY CONSTRUCTION CO., INC., etc., et al., Defendants–Appellants.
Peckar & Abramason, P.C., New York (Paul G. Monte of counsel), for appellants. Duane Morris, LLP, New York (Mark A. Canizio of counsel), for respondent.
Peckar & Abramason, P.C., New York (Paul G. Monte of counsel), for appellants.
Duane Morris, LLP, New York (Mark A. Canizio of counsel), for respondent.
Gische, J.P., Oing, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Andrew Borrok, J.), entered April 22, 2020, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Defendants are not entitled to summary judgment dismissing the complaint, which asserts causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing. On appeal, defendants do not dispute that plaintiff is an intended third-party beneficiary of their contract with the City. The contractual notice provision at issue was not a condition precedent to commencing this lawsuit, as it lacked unmistakable conditional language (see VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 194–195, 98 N.Y.S.3d 1 [1st Dept. 2019] ; EidosMedia Inc. v. Citigroup Tech., Inc., 140 A.D.3d 555, 555, 32 N.Y.S.3d 505 [1st Dept. 2016] ; DirectTV Latin Am., LLC v. RCTV Intl. Corp., 115 A.D.3d 539, 540, 982 N.Y.S.2d 96 [1st Dept. 2014] ) and, nevertheless, did not apply to instances where delay damages were being sought. The prime contract's "no damage for delay" provision may, by its plain terms, be invoked only by the City. In addition, having reviewed the record, we conclude that triable issues are raised by conflicting evidence as to the import of plaintiff's requests for time extensions and its verified statement of claim.