R.P. Brennan Gen. Contrs. & Bldrs., Inc. v Bovis Lend Lease LMB, Inc.

R.P. Brennan Gen. Contrs. & Bldrs., Inc. v Bovis Lend Lease LMB, Inc. 2008 NY Slip Op 00365 [47 AD3d 499] January 22, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

R.P. Brennan General Contractors & Builders, Inc., Appellant,
v
Bovis Lend Lease LMB, Inc., Respondent, et al., Defendant.

—[*1] Mastropietro-Frade, LLC, New York City (John P. Mastropietro of counsel), for appellant.

Zetlin & DeChiara LLP, New York City (Chris J. Fladgate of counsel), for respondent.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered May 14, 2007, which denied plaintiff contractor's motion for partial summary judgment on the issues of defendant-respondent construction manager's (defendant) liability for terminating the contracts between them, and for withholding payment for work performed by plaintiff and certified by defendant as compliant with the contracts, unanimously affirmed, with costs.

The motion court correctly found that issues of fact exist as to whether plaintiff's performance was compliant with the contracts, and correctly held that defendant's certifications of plaintiff's work to defendant owner, and receipt of payment from the owner, do not conclusively establish plaintiff's right to payment. Paragraphs 18.8 and 18.15 of the general conditions to the subject contracts authorize defendant to withhold payments received from the owner where there is evidence of unsatisfactory performance, and provide that defendant's certification of work does not constitute evidence of proper performance or an acceptance of defective work (see Pottstown Fabricators, Inc. v Manshul Constr. Corp., 927 F Supp 756, 757 [SD NY 1996]). No reason appears why defendant could not subsequently rely on the above provisions of the general conditions after it had initially denied payment solely on the basis of [*2]an existing subcontractor's lien against the property that was soon thereafter satisfied. We have considered plaintiff's other arguments and find them unavailing. Concur—Lippman, P.J., Saxe, Nardelli, Williams and Moskowitz, JJ. [See 15 Misc 3d 1134(A), 2007 NY Slip Op 50972(U).]