J.A. Lee Elec., Inc. v City of New York
Annotate this CaseDecided on March 29, 2013
Supreme Court, Queens County
J.A. Lee Electric, Inc., Plaintiff,
against
City of New York, Defendant.
702169/12
Defendant Attorney:
Michael A. Cardozo
Corporation Counsel of the City of New York
100 Church Street, Room 3-242
New York, New York 10007
By: Evan Schnittman
Assistant Corporation Counsel
Plaintiff Attorney:
Redmond Law Office
44 Wall Street, 12th Floor
New York, New York 10005
By: Jason Melville, Esq.
Phyllis Orlikoff Flug, J.
The following papers numbered 1 to 5 read on this motion
Notice of Motion1 - 2 [*2]
Affirmation in Opposition3
Reply Affirmation (2)4 - 5
Defendant, the City of New York (hereinafter "City"), moves inter alia to dismiss plaintiff's Complaint.
This is an action to recover damages allegedly sustained by plaintiff as a result of defendant's alleged breach of a contract with plaintiff for the construction and reconstruction of playgrounds in schoolyards at P.S. 116 and I.S. 238, in the County of Queens, City and State of New York.
That portion of the City's motion seeking dismissal of plaintiff's cause of action asserting a claim for prompt interest payment is granted, without opposition.
"To succeed on a motion to dismiss pursuant to CPLR 3211[a][1], the documentary evidence which forms the basis of the defense must resolve all factual issues as a matter of law and conclusively dispose of the plaintiff's claim" (Nisari v. Ramjohn, 85 AD3d 987, 988 [2d Dept. 2011]).
The City first contends it is entitled to dismissal on the ground that plaintiff failed to commence the action within six months from the date of substantial completion as required by the contract. Contrary to this contention however, the contract actually requires that any action be commenced within six months from the date that the commissioner issued a Certificate of Substantial Completion.
The City's contention that a March 16, 2011 letter from George Kroenert, a deputy director with the Department of Parks and Recreation which states that a final inspection was held, that the work was accepted in accordance with the contract requirements except for the items specified in the punch list attached to the letter constitutes a Certificate of Substantial Completion was improperly raised for the first time in reply (See Azzopardi v. American Blower Corp., 192 AD2d 453 [1st Dept. 1993]; see also Forest River, Inc. v. Stewart, 34 AD3d 474, 475 [2d Dept. 2006]; Calderone v. Harrel, 237 AD2d 318, 319 [2d Dept. 1997]). Nevertheless, even if the City's contention were to be considered, it would still lack merit.
The Contract clearly provides that the certificate of substantial completion is to be issued after the contractor has been furnished a final punch list. As such, the March 16, 2011 letter, which provides the final punch list to the contractor, cannot also be a Certificate of Substantial completion (See Vill. of Hamburg v. Am. Ref-Fuel Co., 284 AD2d 85, 89 [4th Dept. 2001]). The City has failed to submit any evidence that a final punch list was provided to the contractor prior to the March 16, 2011 letter. The City has likewise failed to submit any evidence to establish [*3]that George Kroenert is a "commissioner" as that term is defined in the contract.
The City next contends that plaintiff waived any damages for the delay by failing to notify the Engineer in writing of the condition causing the delay. In support of this contention, the City submits the affidavit of Magdi Beshara, a project manager with the Department of Parks and Recreation, that her search for records did not reveal any written notices of the conditions causing delay.
Notably, this affidavit fails to indicate the parameters of the search performed and, as such, cannot establish a lack of notice as a matter of law and conclusively dispose of plaintiff's claims. In any event, plaintiff submits a Request for Information sent to Violette Rychlicki, the associate project manager for the contract on October 6, 2009, that states that due to the need for a revised grading plan, agreed to by everyone at a meeting on that same day, work on the contract would have to be stopped until the new plan was received. Contrary to the City's contention, there is no indication in the contract that a request for information cannot satisfy the notice requirement and this document clearly meets all of the contract requirements as it is in writing, received within seven days, and notifies the City of the precise condition causing the delay.
Accordingly, that portion of defendant's motion seeking to dismiss plaintiff's causes of action for breach of contract and delay damages is denied.
March 29, 2013 ____________________
J.S.C.
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