Opinion
14755 Index No. 452131/18 Case No. 2021–00880
12-02-2021
P.A.L. ENVIRONMENTAL SAFETY CORP., doing business as PAL Environmental Services, Plaintiff, v. APS CONTRACTING, INC., et al., Defendants. [A Third–Party Action] APS Contracting, Inc., Second Third–Party Plaintiff–Respondent, v. New York City Housing Authority, Second Third–Party Defendant–Appellant.
Lisa Bova–Hiatt, New York City Housing Authority, New York (Amanda McLoughlin of counsel), for appellant. Goetz Fitzpatrick LLP, New York (Victor Rivera Jr. of counsel), for respondent.
Lisa Bova–Hiatt, New York City Housing Authority, New York (Amanda McLoughlin of counsel), for appellant.
Goetz Fitzpatrick LLP, New York (Victor Rivera Jr. of counsel), for respondent.
Gische, J.P., Kapnick, Kern, Gesmer, Kennedy, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about April 13, 2020, which, to the extent appealed from as limited by the briefs, denied second third-party defendant's (NYCHA) motion to dismiss the second third-party cause of action for breach of contract, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the second third-party complaint.
All second third-party plaintiff's (APS Contracting) notices of claim were either untimely or facially insufficient, or both, for failing to state APS Contracting's claimed damages under the requirements of the parties’ contract (see Universal Constr. Resources, Inc. v. New York City Hous. Auth., 192 A.D.3d 470, 471, 144 N.Y.S.3d 162 [1st Dept. 2021] ; Matter of Intercontinental Constr. Contr., Inc. v. New York City Hous. Auth., 173 A.D.3d 453, 454, 102 N.Y.S.3d 576 [1st Dept. 2019] ; Start El., Inc. v. New York City Hous. Auth., 106 A.D.3d 450, 450, 965 N.Y.S.2d 59 [1st Dept. 2013] ). APS Contracting's contention that NYCHA waived the notice requirement in section 23 of the contract by continuing to correspond regarding APS Contracting's proposed change orders and to make offers is unavailing, because claims accrue when damages are ascertainable (see Universal Constr. Resources, 192 A.D.3d at 471, 144 N.Y.S.3d 162 ). In addition, the contract included a no estoppel clause ( Centennial El. Indus., Inc. v. New York City Hous. Auth., 129 A.D.3d 449, 450, 11 N.Y.S.3d 564 [1st Dept. 2015] ).