Opinion
2013-12-12
SCHINDLER ELEVATOR CORPORATION, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Law Offices of Edward Weissman, New York (Edward Weissman of counsel), for appellant. Kelly D. MacNeal, New York (Paul A. Marchisotto of counsel), for respondent.
Law Offices of Edward Weissman, New York (Edward Weissman of counsel), for appellant. Kelly D. MacNeal, New York (Paul A. Marchisotto of counsel), for respondent.
Order, Supreme Court, New York County (Doris Ling–Cohan, J.), entered January 9, 2013, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
As plaintiff does not contest on appeal, it failed to comply with the contractual requirement that a notice of claim be submitted within 20 days after the claim arose. Even under plaintiff's theory that its claim arose when its request for payment was denied by defendant on November 30, 2010, the notice of claim allegedly filed on July 12, 2011 is untimely. The failure to meet this express “condition precedent to commencing an action pursuant to section 23 of the parties' contract” warrants dismissal of the complaint ( see Everest Gen. Contrs. v. New York City Hous. Auth., 99 A.D.3d 479, 479, 951 N.Y.S.2d 671 [1st Dept.2012] ).
Plaintiff's argument that the contractual provision which shortened the applicable statute of limitations to one year is ambiguous, although not previously raised, may be reached on appeal since “it poses a question of law that could not have been avoided if raised before the motion court” (Delgado v. New York City Bd. of Educ., 272 A.D.2d 207, 708 N.Y.S.2d 292 [1st Dept.2000], lv. denied95 N.Y.2d 768, 721 N.Y.S.2d 605, 744 N.E.2d 141 [2000], cert. denied532 U.S. 982, 121 S.Ct. 1624, 149 L.Ed.2d 486 [2001] ). The provision, although perhaps inartfully drafted, is not ambiguous. Plaintiff's claim is barred by the statute of limitations, which pursuant to the contract, began to run on June 15, 2011, the date of termination of the contract ( seeCPLR 201). Thus, the statute expired prior to plaintiff's commencement of this action, more than one year later, on July 28, 2011.
We have considered plaintiff's remaining arguments and find them unavailing. GONZALEZ, P.J., ANDRIAS, SAXE, RICHTER, CLARK, JJ., concur.