Palace Elec. Contrs. v William Floyd Union Free School Dist.

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Palace Elec. Contrs. v William Floyd Union Free School Dist. 2012 NY Slip Op 32785(U) November 13, 2012 Supreme Court, Suffolk County Docket Number: 06-28168 Judge: Daniel Martin Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. CAL No. :I 06-28 168 12-00881CO SUPREME COURT - STA'TE OF NEW YORK I.A.S. PART 9 - SUFFOLK COUNTY PRESENT: I Ion. DANIEL MARTIN Justice of t h e Supreme Court PALACE ELECTRICAL CONTRACTORS, INC'., P 1aint i ff, - against - WIILIAM FLOYD UNION FREE SCHOOL DISTRICT, BOARD OF EDUCATION WILLIAM FLOYD UNION FREE SCHOOL DISTRICT, and JOHN DOE #1 through JOHN DOE #25, these names being fictitious and unknown to plaintiff, the parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in the public funds and/or lien upon the property and the buildings known as and by William Floyd Union Frcc School Districts, MOTION DA1'E 5- 1 - I2 7-3 1 - 12 ADJ. D A l E Mot. Seq. if 004 - MG;CASEDISP FOLEY & ASSOCIATES, P.C. Attorney for Plaintiff 1 10 Wall Street, 1 1th Floor New York, New York 10005 BOND, SCHOENECK & KING, PLLC Attorney for Defendants One Lincoln Center Syracuse, New York 13202 Defendants. llpoii the fhllowiiig papers numbered I to j read on this motion for summary iudgtiient; Notice of Motion/ Order l Show Cause and supporting papers I - 26 ; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 28 - 30 ; Replying Affidavits and supporting papers -: Other memoranda of law 27, 3 I ; ( V 3 it is. to r ) granting suininary judgment dlsmissmg the complaint is granted; and ORDERED that the Court S it is further s p n i e dismisses as moot the claiins against the defendants John Z L ~ [* 2] Palace Electrical Contractors. Inc. v William Floyd Union Free School District Index No. 06-28 168 Page 2 This is an action to recover damages for monies allegedly due under a contract. In February 2002. the plaintiff. Palace Electrical Contractors. Inc. (Palace), entered into a written contract with the defendant. William Floyd Union Free School District (the School District). to perform electric work for construction prqjects at the William Floyd Elementary School (WFE School project) and the Williarn Paca Junior High School (JHS project). In its complaint, Palace alleges that the contract called for its work to commence on February 18, 2002, and terminate by October 3, 2005, that the School District directed it to accelerate and/or delay its work outside of the existing or modified work schedules resulting i n additional costs and financial charges, and that the defendants failed to pay the additional costs lhe complaint sets forth four causes of action for breach of contract, foreclosure of lien, payment of its notice of claim, and quantum meruit, respectively. The defendants now move for summary judgment on the grounds that Palace failed to timely serve a notice of claim pursuant to Education Law 38 13 (l), and that the action is barred by the applicable one-year statue of limitations (Education Law 38 13 [2-b]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320,508 NYS2d 923 [ 19861; Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 1,487 NYS2d 3 16 [ 19851 ). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact Potlz v Barreto, 289 AD2d 557,735 NYS2d 197 [2d Dept 20011; Rebecclzi v Wlzitmore, 172 AD2d 600,568 NYS2d 423 [2d Dept 19911; O NeiN v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 19871). Furthermore, the parties competing interest must be viewed in a light most favorable to the party opposing the motion (Marine Midland Bank, N.A. v Dino & Artie s Automatic Transmission Co, 168 AD2d 610, 563 NYS2d 449 I2d Dept 19901). In support of the motion, the School District submits, among other things, the pleadings, the subject notice of claim, the affidavit of its plant facilities manager, the deposition transcripts of Palace s project manager and assistant project manager, the contract between the parties, and various contractrelated documents. The Court notes that the deposition transcripts are certified but unsigned, and that the School District has failed to submit proof that the transcripts were forwarded to the witnesses for their review (see CPLR 3 1 16 [a]). However, the Court may consider the unsigned deposition transcripts submitted in support of the motion as the plaintiff has not raised any challenges to their accuracy (Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 937 NYS2d 602 [2d Dept 20121; Zalot v Z i e b a , 81 AD3d 935, 91 7 NYS2d 285 [2d Dept 201 11; see ulso Beiznet v Berger, 283 AD2d 374, 726 NYS2d 22 [ 1 st I k p t 200 1 I; Zabari v Ct ofNew York, 242 AD2d 15, 672 NYS2d 332 [ 1st Dept 19981). iy In his affidavit in support of the motion, Herbert FIodge (Hodge), the School District s plant facilities manager. swears that Palace completed all of its work except the close out documents for the WFE School project by March 3 1. 2004, and he attaches a copy of Palace s Application and Certificate for Payment (Payment Application) number 19 as evidence thereof. He indicates that, on April 27. 2004. Palace s prqject manager, George Dhaim (Dhaim), signed and submitted an affidavit to the surety I or the projects requesting release of the retainage for the WFE School project, which states: There are no outstanding clainis or items in dispute under the contract to date. He states that Palace completed its close out documents for the WFE School project by August 6, 2004. Hodge further swears that, on [* 3] Palace Electrical Contractors, Inc. v William Floyd Union Free School District lndex No. 06-28 168 Page 3 February 11. 2005. Dhaim signed and submitted an affidavit to the surety for the prqjects requesting final payment for the projects which states: There are no outstanding claims or items in dispute under the contract to date, that Palace completed its close out documents for the JHS project by the end of February 2005. and that Place submitted its Final Payment Application number 27, on May 1 1, 2005. He indicates that Palace served the subject notice of claim on October 1, 2005, more than four months after the completion of its work under the contract, and commenced this action on October 4,2006, more than one year after it completed said work. Education Law 38 13. entitled Presentation of claims against the governing body of any school district or certain state supported schools, provides in pertinent part: 1. No action or special proceeding, for any cause whatever, except as hereinafter provided ... against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district, board of education ... unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment. In the case of an action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied. *** 2-b. Except as provided in subdivision two of this section and, notwithstanding any other provision of law providing a longer period of time in which to commence an action or special proceeding, no action or special proceeding shall be commenced against any entity specified in subdivision one of this section more than one year after the cause of action arose ... A review of the contract-related documents reveals that the defendants have established their prima facie entitlement to summary judgment herein. In determining whether a notice of claim is timely pursuant to Education Law 38 13, a denial of payment is deemed to occur upon an express refusal to pay, or when a party should have viewed [its] claim as having been constructively rejected (Zurich Anz. Ins. Co. v. Rrrvlinpo Cent. Scliool Dist., 63 AD3d 729, 879 NYS2d 585 [2d Dept 20091; see also East Ilcrvllpton Union Free Scliool Dist. v Sandpebble Builders, Inc., 90 AD3d 82 1, 93 5 NYS2d 4 16 [2cl Dept 201 I]; Greece Cent. Scltool Dist. v Garden Grove Lnndsccipe, 90 AD3d 1568,935 NYS2d 77 7 14th Dept 201 I]: Oriskn Ins. Co. v Board ofEduc., 68 AD3d 1190, 890 NYS2d 171 [3d Dept 20091; Angelo Cnpobicinco, Inc. v Brentwood Union Free Scliool Dist., 53 AD3d 634, 862 NYS2d 561 [* 4] Palace Electrical Contractors, Inc. v William Floyd Union Free School District Index No. 06-98 168 Page 4 [2dl>ept2008j; Matter o Hawtliorne Cedar KiioIIs Union Free School Dist. f 36.4D3d 810, 828 NYS2d 221 [2d Dept 20071). 1) Carey & Wdslr, I ~ I c . , It is undisputed that Palace submitted a sworn affidavit to the surety for the projects seeking final payment under the contract on February 1 1, 2005, which stated that there were no outstanding claims or items in dispute under the contract to date, that the surety consented to final payment to Palace on February 16, 2005. and that Palace served its notice of claim on October 18. 2005. more than eight months later. A review of the record reveals that the delays and accelerations allegedly attributable to the defendants occurred no later than January 14, 2005, that Palace did not seek payment for the additional costs it is allegedly owed before filing its notice of claim, and that Palace is an experienced electrical contractor. The Court finds that the defendants have established that Palace constructively knew that any claim for additional costs made by it after February 11, 2005, would have been rejected by the School District. In addition, the Court finds that Palace s filing of a Final Payment Application on May 1 1, 2005, which indicates that close out documents for the project have been completed, is further proof that Palace constructively knew that any claim for additional costs would be rejected by the School District. In opposition to the defendants motion, Palace submits the affidavit of Dhaim, its project manager, who swears that [tlhe affidavit that I signed stating that There are no outstanding claims or items in dispute under the contract to date was correct at the time I signed it, as we had not determined or computed and submitted a claim as of those dates. He indicates that the affidavit language does not say that we are waiving our rights to pursue such a claim at a later date. Palace fails to raise a triable issue of fact regarding the dates of completion of the projects, and the dates that it filed close out documents and Payment Applications which establish that it should have viewed any further claims made to be constructively rejected because the School District would deny any further applications for payment pursuant to the contract between the parties. The service of its notice of claim for additional costs on October 18, 2005, more than three months after May 1 1, 2005, when Palace constructively knew that any demand for payment would be rejected, was untimely pursuant to Education I,aw 38 13 (1). In addition, the commencement of this action against the School District on October 4, 2006, more than one year after May 11, 2005, was untimely and is barred by the statute of limitations pursuant to Education Law 38 13 ( 2 4 ) . Accordingly, Palace s First, Second, and Third Causes of Action for breach of contract, foreclosure of its lien, and payment of its notice of claim rcspcctively are dismissed. 1 he C ourt now turns to Palace s Fourth Cause of action for quantum meruit. In general, [tlhe existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter. (ClnrkFitipatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 521 NYS2d 653 [1987]). It is well settled that a I . I hc Court notes that Dhaim s affidavit contains a notarized verification instead of a simple notarized signature. In addition, Palace s opposition papers do not include an affidavit of service. However, it is clear that the School District received the opposition, and the Court deems Dhaim s affidavit admissible under the circumstances. I n addition. the Court notes that the original and two duplicate copies o f t h e School District s reply memorandum do not include an affidavit of service and it has not been considered in the determination of this motion. [* 5] Palace Electrical Contractors. Inc. v William Floyd Union Free School District Index No. 06-28 168 Page 5 part) may not seek damages in an action sounding in quasi-contract where the suing party has fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties (Clnrk-Fitzpntrick, Irzc. v Long Is. R.R. Co., s z p a ; GerzeralSec. Property & Cas. Co. vAmerican Fleet Mgt., Iric., 37 AD3d 345, 830 NYS2d 136 [lst Dept 20071; Aviv Const., Inc. v Antiqunriunz, Ltd., 259 AD2d 445, 687 NYS2d 344 [lst Dept 19991; Lero-y Callender, P.C. v Fieldnzaiz. 252 AD2d 468, 676 NYS2d 152 [ 1 st Dept 19981). Here, it is undisputed that Palace has fully performed on a valid written agreement. which provides a specific procedure for requests for additional monies claimed to be due and owing from the School District vita v Fisclibeirz, Badillo, Wagner & Harirzg, 35 AD3d 306, 831 NYS2d 25 [lst Dept 20061;Aviv Const., Inc. v Antiqcrriricrm, Ltd., stiprn). The contract between the parties dated February 12, 2002, in its General Conditions of the Contract for Construction, Article 3 (K), provides in pertinent part that: The Contractor shall monitor the progress of its work for conformance with the requirements of the construction schedule and shall promptly advise the [School District] of any delays or potential delays. In the event any progress report indicates any delays, the Contractor shall propose an affirmative plan to correct the delay, including overtime and/or additional labor, if necessary. In no event shall any progress report constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the [School District] and authorized pursuant to Change Order. Palace s notice of claim served on October 18, 2005, sets forth the basis of its claim against the School District in paragraph 5, which states Palace furnished labor and materials to perform electrical contracting work on said public improvement. Said labor and materials were furnished pursuant to the agreement between Palace and [the School District] referred to herein as the Palace/WFUFSD Contract. In the course of the prosecution of its work, Palace was directed to substantially accelerate the complction time for the work to be done in accordance with the contract. Palace was thereupon obligated to pay additional labor charges and material costs ... It is undisputed that Palace did not submit any requests for adjustments to the contract sum herein, and the School District did not authorize any additional payments pursuant to change orders, regarding the additional costs sought in this action. The School District has established that Palace fully performed on a valid written agreement, the existence of which is undisputed, and the scope of which clearly covers the dispute between the parties. ,4ccordingly, Palace s Fourth Cause of Action sounding in quantum meruit is dismissed. l:inally, thc Court notes that Palace has not prosecuted this pction against the defendants John Doe # 1 through John Doe # 25 and, in any event, the potential cl&rns against t h y 1 are moot in light of 7 the C o ur t s det erm i nat i on s here in. Dated: /? J.S.C. < X FINAL DISPOSITION NON- F IN A L QJS POSIT 1 0N

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