Opinion
810 Index No. 652495/20 Case No. 2022–04840
10-17-2023
FIVE STAR ELECTRIC CORP., Plaintiff–Appellant, v. SILVERITE CONSTRUCTION COMPANY, INC., et al., Defendants–Respondents.
Arthur J. Semetis, P.C., New York (Michael J. McDermott of counsel), for appellant. Cohen Seglias Pallas Greenhill & Furman PC, New York (Craig H. Parker of counsel), for respondents.
Arthur J. Semetis, P.C., New York (Michael J. McDermott of counsel), for appellant.
Cohen Seglias Pallas Greenhill & Furman PC, New York (Craig H. Parker of counsel), for respondents.
Webber, J.P., Oing, Gesmer, Rodriguez, Rosado, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered September 23, 2022, which granted defendants’ motion to dismiss the complaint to the extent of dismissing all claims except the portion of the breach of contract claim relating to funds that Silverite recovered from nonparty New York City School Construction Authority (SCA) on plaintiff's behalf, unanimously affirmed, with costs.
The court correctly determined that plaintiff's breach of contract claim, to the extent dismissed, was foreclosed by the no-damage-for-delay provision in the subcontract between plaintiff and defendant Silverite Construction Company, Inc. Contrary to plaintiff's contention, plaintiff is collaterally estopped from relitigating the enforceability of the no-damage-for-delay clause by the decision in Five Star Elec. Corp. v. Silverite Constr. Co., Inc. (Sup Ct, N.Y. County, July 30, 2020, Joel M. Cohen, J., Index No. 654461/2016). There, the court upheld the enforceability of the no-damage-for-delay clause in an identical contract between plaintiff and Silverite, thereby necessarily deciding the precise issue raised in this case (see Lindgren v. New York City Hous. Auth., 269 A.D.2d 299, 301, 704 N.Y.S.2d 30 [1st Dept. 2000] ).
Furthermore, here, plaintiff has not shown that an exception to the enforceability of the no-damage-for-delay clause applies (see Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 309, 502 N.Y.S.2d 681, 493 N.E.2d 905 [1986] ). The conclusory allegations in the complaint that merely recite the exceptions are insufficient to plead the exceptions (see WDF Inc. v. Trustees of Columbia Univ. in the City of N.Y., 156 A.D.3d 530, 65 N.Y.S.3d 448 [1st Dept. 2017] ), and the allegation that Silverite failed to take reasonable measures to coordinate plaintiff's work and address the delays on the project are insufficient to show bad faith, or willful, malicious, or grossly negligent conduct (see WDF, Inc. v. Trustees of Columbia Univ. in the City of N.Y., 170 A.D.3d 518, 519, 96 N.Y.S.3d 42 [1st Dept. 2019] ).
Given the unambiguous non-waiver clause in Section 15.3 of the subcontract, Silverite did not waive its right to enforce the no-damage-for-delay provision by submitting plaintiff's claims for delay damages to SCA as part of Silverite's settlement discussions with SCA (see Rosenzweig v. Givens, 62 A.D.3d 1, 7, 879 N.Y.S.2d 387 [2009], affd 13 N.Y.3d 774, 886 N.Y.S.2d 845, 915 N.E.2d 1140 [2009] ; International Installations, Inc. v. Panther Assoc., 191 A.D.2d 253, 595 N.Y.S.2d 11 [1st Dept. 1993] ).
Plaintiff's claim for trust fund diversion under Lien Law § 72 was properly dismissed because the allegations that Silverite received and unlawfully diverted trust fund monies are made "upon information and belief" and are wholly conclusory (see Bd. of Mgrs. of the Gansevoort Condominium v. 325 W. 13th, LLC, 121 A.D.3d 554, 554, 993 N.Y.S.2d 901 [1st Dept. 2014] ). The unjust enrichment claim is precluded by the parties’ subcontract ( Clark–Fitzpatrick, Inc. v. Long Is. R. Co., 70 N.Y.2d 382, 388–389, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ; Norcast S.ar.l. v. Castle Harlan, Inc., 147 A.D.3d 666, 668, 48 N.Y.S.3d 95 [1st Dept. 2017] ). The conversion claim is duplicative of the breach of contract claim (see Kopel v. Bandwidth Tech. Corp., 56 A.D.3d 320, 320, 868 N.Y.S.2d 16 [1st Dept. 2008] ). Finally, since the no-damage-for-delay provision bars plaintiff from recovering the sought damages resulting from the delays, plaintiff has no claim against the surety defendants for payment under the bond (see Welsbach Elec. Corp. v. Judlau Contr., Inc., 172 A.D.3d 585, 102 N.Y.S.3d 11 [1st Dept. 2019] ).
We have considered plaintiff's remaining arguments and find them unavailing.