Bat- Jac Contracting, Inc. v. New York City Housing Authority

1 A.D.3d 128, 766 N.Y.S.2d 352, 2003 N.Y. App. Div. LEXIS 11640

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 6, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Paula Omansky, J.), entered February 27, 2003, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to file a timely notice of claim, which is expressly made a prerequisite to recovery under the parties’ contract and which is subject to strict construction as a matter of public policy (see A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 33-34 [1998]). Plaintiffs previous letter notice is not designated as a notice of claim and, in any event, fails to meet the requirements of the contract’s notice provision. Even if the notice defect were to be ignored, plaintiff waived any right to sue for delay damages under the contract. Plaintiff has failed to demonstrate intentional wrongdoing, gross negligence or willful misconduct (North Star Contr. Corp. v City of New York, 203 AD2d 214, 215 [1994]), and its claim is tantamount to an allegation of poor contract administration that is subject to the bar of the exculpatory provision (see T.J.D. Constr. Co. v City of New York, 295 AD2d 180 [2002]; S.N. Tannor, Inc. v A.F.C. Enters., 276 AD2d 363, 364 [2000]). Concur— Nardelli, J.P, Mazzarelli, Sullivan, Rosenberger and Lerner, JJ.