Mendelsohn v City of N.Y. (19th Precinct)

Mendelsohn v City of New York (19th Precinct) 2011 NY Slip Op 08291 Decided on November 17, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 17, 2011
Tom, J.P., Saxe, Moskowitz, DeGrasse, Abdus-Salaam, JJ.
5826 602869/99

[*1]Allan B. Mendelsohn, etc., Plaintiff-Appellant,

v

City of New York (19th Precinct), Defendant-Respondent.




The McDonough Law Firm, LLP, New Rochelle (Howard S.
Jacobowitz of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Jane L.
Gordon of counsel), for respondent.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about February 9, 2011, which, to the extent appealed from, granted defendant City of New York's cross motion for summary judgment dismissing the complaint as time-barred, unanimously affirmed, without costs.

The court correctly determined that, pursuant to CPLR 213(2), this action for breach of a construction contract had to be commenced within six years of substantial completion of the work and was time-barred (see Phillips Constr. Co. v City of New York, 61 NY2d 949, 951 [1984]; 645 First Ave. Manhattan Co. v Silhouette Drywall Sys., 212 AD2d 394 [1995]). The City submitted a letter dated May 21, 1992 showing that the work was substantially complete on April 9, 1992, more than six years before plaintiff commenced this action.

Plaintiff failed to raise an issue of fact as to when the work was substantially complete. To the contrary, plaintiff's own document, a contractor's certificate seeking partial payment dated May 7, 1992, indicates that 98% of the work was complete as of that date. The June 29, 1992 and August 5, 1992 memoranda, and the October 1, 1993 and November 22, 1993 letters, merely show that work incidental to the electrical work on the building, namely a fire alarm system and items on a punch list, was incomplete (see Phillips Constr., 61 NY2d at 951).

Additionally, plaintiff's purported claim to recover its guarantee monies pursuant to Article 24 of the contract has not been considered here, as it was not raised below, either in the pleadings or the motion papers and thus, was not preserved for appellate review.

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 17, 2001

CLERK