| Global Precast, Inc. v Stonewall Contr. Corp. |
| 2010 NY Slip Op 07984 [78 AD3d 432] |
| November 9, 2010 |
| Appellate Division, First Department |
| Global Precast, Inc., Appellant, v Stonewall Contracting Corp.et al., Respondents. |
—[*1] McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Mark A. Rosen of counsel), forrespondents.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about July 2, 2009, which,in this action seeking damages for, in part, breach of contract, inter alia, granted the motion bydefendant Stonewall Contracting Corp. for summary judgment dismissing the complaint, unanimouslymodified, on the law, to the extent of denying the motion, and otherwise affirmed, without costs.
As a general rule, a valid release that is clear and unambiguous on its face constitutes a completebar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulentconcealment, misrepresentation, mutual mistake or duress (see Littman v Magee, 54 AD3d 14, 17 [2008]; Global Mins. & Metals Corp. v Holme, 35AD3d 93, 98 [2006], lv denied 8 NY3d 804 [2007]). However, the record hereinreveals that following the execution of the purported release documents, defendant, by its conduct, mayhave implicitly acknowledged plaintiff's right to obtain additional payment (see Penava Mech. Corp. v Afgo Mech. Servs.,Inc., 71 AD3d 493, 495 [2010]; E-J Elec. Installation Co. v Brooklyn Historical Socy., 43 AD3d 642,643-644 [2007]). Under these circumstances, there are triable questions of fact as to whether thepartial lien waiver and the change order to which plaintiff agreed, were intended to encompass theclaims that plaintiff subsequently presented to defendant for work performed by one of itssubcontractors, Tri-State Stone Erectors. Indeed, where a waiver form purports to acknowledge thatno further payments are owed, but the parties' conduct indicates otherwise, the instrument will not beconstrued as a release (see E-J Elec. Installation Co. at 644).
Defendant argues, however, that its obligation was, at most, simply to pass the subject claims alongto the Dormitory Authority of the State of New York (DASNY), the project owner, which agencyallegedly caused the delays that occurred herein, and that it was not, without a contractual commitmentto the contrary, responsible for delays incurred by its subcontractor unless those delays were caused bysome agency or circumstance under its direction or control (see Triangle Sheet Metal Works vMerritt & Co., 79 NY2d 801, 802 [1991]). Nevertheless, the reason why the invoices submittedby plaintiff on behalf of Tri-State were not paid cannot be said, as a matter of law, to have been theresult solely of DASNY's conduct and/or its refusal to [*2]pay them.There are, consequently, triable questions of fact as to whether the delays attributable to DASNY werea substantial contributing cause of the delay and whether it was this agency that declined payment of thesubject claims. Concur—Gonzalez, P.J., Saxe, Nardelli, Richter and RomÁn, JJ.