MRW Construction Co. v. City of New York

223 A.D.2d 473, 636 N.Y.S.2d 344, 1996 N.Y. App. Div. LEXIS 521

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (Alfred Lerner, J.), entered on or about June 17, 1994, which, inter alia, granted defendant’s motion for partial summary judgment dismissing the third, fourth and fifth causes of action, and order and judgment (one paper) of the same court (Richard Braun, J.), entered February 22, 1995, which granted defendant’s motion to dismiss the complaint upon the completion of the plaintiffs case at trial of the second cause of action, unanimously affirmed, without costs.

Defendant’s motion for partial summary judgment dismissing plaintiffs fourth cause of action was properly granted, whether the cause of action is considered as seeking additional compensation for extra work or for disputed work or for delay damages, since plaintiff failed to prove strict compliance with the notice and damage documentation requirements of Articles 27 and 28 of the contract (see, Buckley & Co. v City of New York, 121 AD2d 933, lv dismissed 69 NY2d 742; Huff Enters, v Triborough Bridge & Tunnel Auth., 191 AD2d 314, lv denied 82 NY2d 655).

The trial court properly granted defendant’s motion to dismiss the second cause of action for failure to establish substantial completion of the work, which was a condition precedent for release of the 5% retainage. The trial court properly exercised its discretion in refusing plaintiffs application to reopen its case after it had rested, and defendant had moved to dismiss (King v Burkowski, 155 AD2d 285). Concur—Murphy, P. J., Sullivan, Wallach, Kupferman and Ross, JJ.