Opinion
02-24-2015
HI–TECH CONSTRUCTION & MANAGEMENT SERVICES INC., Plaintiff–Appellant, v. The HOUSING AUTHORITY OF the CITY OF NEW YORK, Defendant–Respondent. Hi–Tech Construction & Management Services Inc., Plaintiff–Appellant, v. The Housing Authority of the City of New York, Defendant–Respondent.
Foreht Associates LLP, New York (Richard S. Last of counsel), for appellant. David Farber, New York City Housing Authority, New York (Paul A. Marchisotto of counsel), for respondent.
Foreht Associates LLP, New York (Richard S. Last of counsel), for appellant.David Farber, New York City Housing Authority, New York (Paul A. Marchisotto of counsel), for respondent.
TOM, J.P., RENWICK, ANDRIAS, RICHTER, GISCHE, JJ.
Opinion Order, Supreme Court, New York County (Manuel Mendez, J.), entered August 2, 2013, which granted defendant New York City Housing Authority's motion for summary judgment dismissing the consolidated complaints, unanimously affirmed, without costs.
Plaintiff failed to provide timely written notice of its intention to make a claim for damages arising out of defendant's delay, a condition precedent to commencing an action pursuant to section 23 of the parties' contract (see A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d 20, 30–31, 677 N.Y.S.2d 9, 699 N.E.2d 368 [1998] ; Everest Gen. Contrs. v. New York City Hous. Auth., 99 A.D.3d 479, 951 N.Y.S.2d 671 [1st Dept.2012] ). Neither plaintiff's letter concerning its opinion on preparing walls for painting, which stated that plaintiff would consider its claim for payment of skim coating a “continuous claim,” without stating how much the claim was for, or delineating itself as a notice of claim, nor plaintiff's various requests for change orders, satisfied the contract (see Bat–Jac Contr. v. New York City Hous. Auth., 1 A.D.3d 128, 766 N.Y.S.2d 352 [1st Dept.2003] ).
Defendant's defense of this litigation and participation in settlement negotiations did not constitute a waiver of section 23, nor was defendant estopped from moving for dismissal on that ground (see Huff Enters. v. Triborough Bridge & Tunnel Auth., 191 A.D.2d 314, 316–317, 595 N.Y.S.2d 178 [1st Dept.1993], lv. denied 82 N.Y.2d 655, 602 N.Y.S.2d 804, 622 N.E.2d 305 [1993] ).