Opinion
February 20, 1992
Appeal from the Supreme Court, New York County (Burton S. Sherman, J.).
Defendants' assertion that defective performance by plaintiff required defendant Carland Construction Co. to do certain corrective work entitling it to a back charge was not made until more than a year after defendant Carland's treasurer had signed a service report acknowledging completion of plaintiff's contractual obligations and acceptance of performance, and is thus expressly barred as a defense by paragraph 4 of the parties' contract, which provides for prompt notification, in writing, of any non-conformity (see, Mount Vernon Mills v. Murphy Textile Mills, 148 A.D.2d 389), and by paragraph 5, which specifically precludes any monetary recovery for materials, repairs, replacements or alterations made by defendant Carland without plaintiff's prior written authorization (Comet Heating Cooling Co. v. Modular Technics Corp., 57 A.D.2d 526).
We also agree with the IAS court that the interest and attorneys' fees provisions set forth in plaintiff's Proposal and Contract are enforceable since the terms were subsequently adopted by defendant Carland. (Braten Apparel Corp. v. Rutger Fabrics Corp., 35 A.D.2d 921.)
Concur — Carro, J.P., Milonas, Ellerin and Ross, JJ.