| Huen N.Y., Inc. v Board of Educ. Clinton Cent. School Dist. |
| 2009 NY Slip Op 08262 [67 AD3d 1337] |
| November 13, 2009 |
| Appellate Division, Fourth Department |
| Huen New York, Inc., Appellant, v Board of Education ClintonCentral School District, Respondent. |
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Appeal from an order and judgment (one paper) of the Supreme Court, Oneida County(Samuel D. Hester, J.), entered January 2, 2009 in a breach of contract action. The order andjudgment granted the motion of defendant for summary judgment and dismissed the complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously reversedon the law without costs, the motion is denied, and the complaint is reinstated.
Memorandum: In this breach of contract action, plaintiff appeals from an order grantingdefendant's motion for summary judgment dismissing the complaint on the ground that plaintifffailed to comply with the written notice of claim requirements set forth in its two contracts withdefendant. We reverse.
We note at the outset that defendant failed to raise in its brief any issue with respect to thealternative ground upon which it moved for summary judgment dismissing the complaint, i.e.,that plaintiff failed to comply with the notice of claim requirement pursuant to Education Law§ 3813. Although defendant was entitled to raise that issue as an alternative ground foraffirmance (see generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d539, 545-546 [1983]), defendant did not do so, despite the fact that Supreme Court indicated thatit was not reaching that issue in view of the fact that it otherwise was dismissing the complaint.We thus deem any issue with respect thereto abandoned (see Ciesinski v Town ofAurora, 202 AD2d 984 [1994]).
Turning to the merits, plaintiff, an electrical contractor, entered into two contracts withdefendant for work on a capital improvement project (project) at the Clinton Central SchoolDistrict. The contracts included two substantial completion dates, one in January 2003 for phaseI of the project and the other in January 2004 for phase II of the project. As a result of variousdelays and other problems arising during the course of construction, the entire project was notcompleted until September 2004. On September 7, 2004, plaintiff presented defendant with adocument entitled "notice of claims," seeking damages for increased costs incurred by plaintiffas [*2]the result of the delay. Approximately one week later,plaintiff submitted a more detailed "notice of claim" to the project architect. Thereafter, plaintiffcommenced this action, alleging that defendant breached the contracts by causing unreasonableand uncontemplated delays. In support of its motion for summary judgment dismissing thecomplaint, defendant relied on the notice of claims provisions in article 4 of both contracts,specifically section 4.3.2. That section is entitled "Time Limits on Claims" and provides inrelevant part that "[c]laims by either party must be initiated within 21 days after the occurrenceof the event giving rise to such Claim or within 21 days after the claimant first recognizes thecondition giving rise to the Claim, whichever is later." The section in question further providesthat "[c]laims must be initiated by written notice to the Architect and the other party." Section4.4.1 of the contracts provides that "[a]n initial decision by the Architect shall be required as acondition precedent to . . . litigation" of any claim.
We agree with plaintiff that the notice provisions upon which defendant relies do not applyto the causes of action asserted by plaintiff. Rather, the contracts contain an express provisiongoverning claims for damages arising out of delay in the commencement or progress of the work,and it is a well-established principle of contract interpretation that specific provisions concerningan issue are controlling over general provisions (see DeWitt v DeWitt, 62 AD3d 744, 745 [2009]). The contractspreviously contained certain provisions that were thereafter deleted in their entirety, including aprovision that "[c]laims relating to time shall be made in accordance with applicable provisionsof" section 4.3, which is entitled "CLAIMS AND DISPUTES." Those prior provisions werereplaced with supplementary conditions to the contracts governing delays and extensions oftime. The substituted section 8.3.2 provides in relevant part that, in the event that the contractoris "obstructed or delayed in the commencement, prosecution or completion of the Work, withoutfault on its part, by reason of failure to act, direction, order, neglect, delay or default of theOwner, the Architect, or any other contractor employed on the Project [or] by changes in theWork . . . then Contractor shall be entitled to an extension of time . . ., but no claim for extension of time on account of delay shall be allowed unless a claim inwriting therefor[ ] is presented to Architect with reasonable diligence but in any event not laterthan [10] days after the commencement of such claimed delay . . . Except to theextent, if any, expressly prohibited by law, Contractor expressly agrees not to make, andhereby waives, any claim for damages, including those resulting from increasedlabor or material cost, on account of any delay, obstruction or hindrance for anycause whatsoever, whether or not foreseeable and whether or not anticipated including but notlimited to the [aforementioned] causes, and agrees that the sole right and remedy therefor[ ] shallbe extension of time, provided the requisite condition as to [a] written claim has been met"(emphasis added).
The substituted section 8.3.4 of the contracts states that "[i]t is emphasized that no monetaryrecovery may be obtained by Contractor for delay," and that a contractor's exclusive remedy fordelay is an extension of time "only upon compliance with the notice and proof requirements of[section] 8.3.2."
We conclude that the deletion of the provision referring claims based on delay to the noticeof claims procedure set forth in section 4.3.2 of the contracts, together with the substitution of anew claims procedure in article 8 governing delays, establishes the parties' intent to removeclaims based on delay from the ambit of section 4.3. As further evidence of the parties' intent, wenote that section 4.3.1 of the contracts defines a claim as "a demand or assertion by one of theparties seeking, as a matter of right, adjustment or interpretation of the Contract terms,payment of money, extension of time or other relief with respect to the terms of theContract" (emphasis added). In light of the fact that article 8 of the contracts specificallyprecludes delay damage claims, except to the extent prohibited by law (see generally CorinnoCivetta Constr. Corp. v City of New York, 67 NY2d 297, 309 [1986], rearg denied68 NY2d 753 [1986]), we [*3]conclude that plaintiff's request fordelay damages is not a demand premised, as a matter of right, on the terms of the contract. Tothe contrary, plaintiff's request for delay damages seeks relief wholly outside the scope of thecontracts.
Moreover, it is well settled that claims for delay damages are beyond the authority of aproject architect to administer the contract (see e.g. International Fid. Ins. Co. v County ofRockland, 51 F Supp 2d 285, 289 [1999]; see also Matter of County of Rockland[Primiano Constr. Co.], 51 NY2d 1, 11 [1980]). As the court in International Fidelity Ins.Co. reasoned in interpreting similar contractual language, "[t]he claims resolution clause inthe parties' Construction Contract is a fairly standard device that has arisen in the constructionindustry to effect a quick resolution of disputes that arise during construction and thatmight cause delay if they are not taken care of immediately. New York courts examining suchclauses have rejected the notion that project architects are empowered to resolve delay damagesdisputes" (51 F Supp 2d at 289).
Here, plaintiff gave the architect prompt and repeated notice of the underlying problems thatarose during construction and that, according to plaintiff, caused the various delays. Thearchitect had no authority, however, to determine plaintiff's claim for delay damages uponsubstantial completion of the project inasmuch as that claim is contrary to the "no damages fordelay" clause in the contracts. We thus conclude that the court erred in granting defendant'smotion and that the complaint should be reinstated. Present—Hurlbutt, J.P., Fahey,Peradotto, Green and Pine, JJ.