Hi-Tech Constr. & Mgt. Servs. Inc. v. Housing Auth. of the City of N.Y.

125 A.D.3d 542, 4 N.Y.S.3d 189

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 2015
• Docket: 14305 602377/05 603609/05
• Status: Published

Opinion

Order, Supreme Court, New York County (Manuel Mendez, J.), entered August 2, 2013, which granted defendant New York City Housing Authority’s motion for summary judgment dismissing the consolidated complaints, unanimously affirmed, without costs.

Plaintiff failed to provide timely written notice of its intention to make a claim for damages arising out of defendant’s delay, a condition precedent to commencing an action pursuant to section 23 of the parties’ contract (see A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 30-31 [1998]; Everest Gen. Contrs. v New York City Hous. Auth., 99 AD3d 479 [1st Dept 2012]). Neither plaintiffs letter concerning its opinion on preparing walls for painting, which stated that plaintiff would consider its claim for payment of skim coating a “continuous claim,” without stating how much the claim was for, or delineating itself as a notice of claim, nor plaintiffs various requests for change orders, satisfied the contract (see Bat-Jac Contr. v New York City Hous. Auth., 1 AD3d 128 [1st Dept 2003]).

Defendant’s defense of this litigation and participation in

settlement negotiations did not constitute a waiver of section 23, nor was defendant estopped from moving for dismissal on that ground (see Huff Enters, v Triborough Bridge & Tunnel Auth., 191 AD2d 314, 316-317 [1st Dept 1993], lv denied 82 NY2d 655 [1993]). Concur — Tom, J.P., Renwick, Andrias, Richter and Gische, JJ. [Prior Case History: 2013 NY Slip Op 31753(U).]