| Penava Mech. Corp. v Afgo Mech. Servs., Inc. |
| 2010 NY Slip Op 01999 [71 AD3d 493] |
| March 16, 2010 |
| Appellate Division, First Department |
| Penava Mechanical Corp., Plaintiff, v Afgo MechanicalServices, Inc., et al., Defendants. Absolute Electrical Contracting, Inc., CounterclaimPlaintiff-Appellant, v Uniqlo USA Inc. et al., Counterclaim Defendants-Respondents. (AndAnother Action.) |
—[*1] Morrison Cohen LLP, New York (Ethan R. Holtz of counsel), for Uniqlo USA Inc.,respondent. Mazur Carp Rubin & Schulman P.C., New York (Ira M. Schulman of counsel), for Richter& Ratner Contracting Corp., respondent.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered February 9,2009, which granted the motions of counterclaim defendants Uniqlo USA Inc. (Uniqlo) andRichter & Ratner Contracting Corp. (R&R) for summary judgment dismissing the counterclaimsasserted against them by Absolute Electrical Contractors, Inc. (Absolute), and denied Absolute'smotion for summary judgment as to liability on such counterclaims, unanimously modified, onthe law, to deny Uniqlo's and R&R's motions for summary judgment, and otherwise affirmed,without costs.
Even assuming that the no-oral-modification clause of the prime contract between R&R asgeneral contractor and Uniqlo as owner was incorporated into the subcontract between R&R andAbsolute, and/or that the subcontract itself contains an effective no-oral-modification clause,"[u]nder New York law, oral directions to perform extra work, or the general course of conductbetween the parties, may modify or eliminate contract provisions requiring written authorizationor notice of claims" (Barsotti's, Inc. v Consolidated Edison Co. of N.Y., 254 AD2d 211,212 [1998]). Here, R&R's representatives testified at their depositions that R&R directedAbsolute to work overtime during the last three weeks of the project and had agreed to pay forthis premium time over and above the contract price, as they had paid for other overtimethroughout the project. [*2]R&R's project manager also testifiedthat during this time R&R instructed Absolute not to bother with the "tickets" that were usuallyprepared by Absolute for such extra work and formed the basis for change orders issued byR&R, but to just get the work done. Given this testimony, R&R cannot argue, at least for presentpurposes, that it did not have to pay for this overtime because there were no written tickets orchange orders covering the three-week period.
The no-waiver provision of the subcontract does not avail R&R, as Absolute is not claimingR&R waived its right to enforce the no-oral-modification clause by making other payments.Rather, Absolute is claiming that R&R waived such right by directing it to perform overtimework and not to bother with the tickets. Nor may R&R rely on the no-damages-for-delay clause,as Absolute is not seeking to recover damages caused by delay but rather to be paid for theovertime that R&R directed and for which it agreed to pay. In fact, R&R admits that itsubstituted overtime payment in lieu of an extension of time to finish the work, an extension towhich Absolute would otherwise have been entitled since the delay, and Absolute's resultingneed for additional time to complete its work, was not Absolute's fault.
The documentation submitted by R&R does not conclusively establish that R&R fully paidAbsolute for all of Absolute's legitimate overtime work during the three-week period, and anissue of fact is presented as to whether Absolute received the compensation it was promised. Nordoes the last partial lien waiver establish that Absolute had waived any further claim forpayment. R&R does not dispute that Absolute was required to sign these waivers whenever itreceived partial payment, and, as demonstrated by the fact that payments were made afterwaivers were given for work performed before the waivers, the parties treated the waivers asmere receipts of the amounts stated in the waivers, not as complete waivers of all claims to thatpoint (see West End Interiors v Aim Constr. & Contr. Corp., 286 AD2d 250, 251-252[2001]; Orange Steel Erectors v Newburgh Steel Prods., 225 AD2d 1010, 1012 [1996]).That this was the last waiver, executed after the project was complete and after Absolute hadmade a claim for additional payment that was rejected by R&R and Uniqlo, does not transform itinto a waiver clearly meant to waive any further claim (see West End, 286 AD2d at 252["(t)he intent to waive a right must be unmistakably manifested, and is not to be inferred from adoubtful or equivocal act"]). The language of this last waiver is the same as the other waivers,and two other waivers were also executed after completion of the project and after Absolute hadsought and been denied the additional payment it seeks. Thus, it is clear that R&R was nottreating these waivers as final and complete waivers of any further claims.
The court also improperly shifted the burden of proof on Uniqlo's motion for summaryjudgment, finding that the claim against Uniqlo should be dismissed because Absolute failed todemonstrate that Uniqlo still owed money to R&R at the time Absolute filed the lien (citing,inter alia, Timothy Coffey Nursery/Landscape v Gatz, 304 AD2d 652, 653-654 [2003]["the rights of a subcontractor are derivative of the rights of the general contractor and asubcontractor's lien must be satisfied out of funds due and owing from the owner to the generalcontractor at the time the lien is filed," an issue on which subcontractor bears the burden(internal quotation marks omitted)]). On a motion for summary judgment, however, it is theproponent who bears the initial burden of coming forward with evidence showing prima facieentitlement to judgment as a matter of law, and, unless that burden is met, the opponent need notcome forward with any evidence at all (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Here, while defendants cite some 200 pages of the record, including certain payments, they donot attempt to explain how these documents demonstrate that [*3]full payment to R&R had been made by Uniqlo prior to thefiling of the lien, or ever. Thus, defendants failed to meet their initial burden, and an issue of factexists in this regard (see Perma Pave Contr. Corp. v Paerdegat Boat & Racquet Club,156 AD2d 550, 552 [1989]; Ebert v Van-Mar Developers, 111 AD2d 495, 496 [1985]).
However, contrary to Absolute's assertion, it is not entitled to summary judgment in itsfavor, as an issue of fact exists as to whether it was fully paid by R&R for the amount of actualovertime worked during the three-week period in question. Concur—Andrias, J.P., Saxe,Sweeny, Moskowitz and Abdus-Salaam, JJ.