| E-J Elec. Installation Co. v Brooklyn Historical Socy. |
| 2007 NY Slip Op 06566 [43 AD3d 642] |
| September 6, 2007 |
| Appellate Division, First Department |
| E-J Electric Installation Co., Respondent, v BrooklynHistorical Society, Appellant. |
—[*1] McDonough Marcus Cohn Tretter Heller & Kanca, L.L.P., New Rochelle (Franklin E.Tretter of counsel), for respondent.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered December 12,2006, which, to the extent appealed from, denied defendant's motion for summary judgmentdismissing the complaint, unanimously affirmed, without costs.
Plaintiff contracted to perform the electrical work in the renovation of defendant's buildingon Pierrepont Street in Brooklyn for a contract price of $1,399,000. At issue is a claim submittedby plaintiff, on or about September 6, 2002, for $1,229,674 in additional costs allegedly causedby defendant's breaches of contract, delays, interference and disruptions, and its supplyinginadequate contract plans and specifications, thereby preventing plaintiff from completing thework by the scheduled date.
Pursuant to section 5.03 of the standard terms and conditions of the contract, plaintiff wasrequired to submit to the construction manager for approval each month an "Application forPayment for Work" performed and to be performed during that particular month. Eachapplication was to include a lien waiver "for all payments for Work including that portion ofWork included in the Application for Payment," entitled "Waiver of Lien to Date," whichcontained the following language:
"TRADE/SUBCONTRACTOR'S AFFIDAVIT
"(Name of Officer) ___________ being duly sworn, deposes and says:
"I am the (office held) _____________ of Trade/Subcontractor. I make this affidavit forthe purpose of inducing Construction Manager/Contractor to make partial payment to us forwork, labor and services performed and/or materials furnished, as set forth on our Application forPayment dated _________.
"All labor employed and materials furnished by us or our subcontractors or vendors inconnection with our work on this Project to the date of our Immediate Preceding Applicationfor Payment dated ___________ have been paid, including any and all applicable sales oruse taxes and applicable union fringe benefits, and there are no liens or claims existent withrespect thereto.[*2]
"TRADE/SUBCONTRACTOR'S WAIVER OF LIEN
"The undersigned Trade/Subcontractor for One Dollar ($1.00) and other good and valuableconsideration received by it, hereby waives and releases the Owner, ConstructionManager/Contractor, and the Project of all claims for payment for work, labor or materialsfurnished to ________, the date of this Application for Payment . . . Theundersigned Trade/Subcontractor further covenants and agrees that it shall not in any way claimor file a mechanic's or other lien against the Project . . . for any work, labor ormaterials furnished by it or to the Project.
"This Trade/Subcontractor's Affidavit and Waiver of Lien to Date are executed anddelivered simultaneously with or after payment for the labor performed and materials furnishedto the date of this Application for Payment." (Emphasis added.)
During the course of the renovation, plaintiff executed a total of 38 waivers between April 4,2000 and February 9, 2004, including 10 executed after its September 6, 2002 claim for extras.
Prior to any discovery, defendant moved for leave to amend its answer to assert a defense ofwaiver, and for summary judgment dismissing the complaint on the ground that plaintiff waivedall of its claims. The IAS court granted leave to amend, but denied summary dismissal withoutprejudice to renewal after additional discovery pertaining to the newly amended answer and theparties' course of dealing and intent as to the Waiver of Lien document.
Plaintiff has raised a triable issue of fact as to what payments the parties intended the waiversof lien to affect, and as to their course of conduct during the ongoing renovation while defendantwas making progress payments. Since the terms of the waiver and the contract between theparties expressly provide for partial payments upon execution of the waiver, "the waiver form isconstrued as merely a receipt for the monies referenced in the waiver. . . . Where awaiver form purports to acknowledge that no further payments are owed, but the parties' conductindicates otherwise, the instrument will not be construed as a release" (West End Interiors vAim Constr. & Contr. Corp., 286 AD2d 250, 252 [2001]).
Thus, defendant's conduct in subsequently paying plaintiff for work theoretically released byprior payments may reasonably be considered completely inconsistent with its theory of generalrelease. For example, the record indicates that defendant, after making an initial payment on acertain part of plaintiff's work and receiving an executed "Waiver of Lien to Date" with [*3]respect thereto, made subsequent payments pursuant to the same"Application for Payment for Work." Concur—Tom, J.P., Mazzarelli, Andrias, Williamsand McGuire, JJ.