| Mendelsohn v City of N.Y. (19th Precinct) |
| 2011 NY Slip Op 08291 [89 AD3d 569] |
| November 17, 2011 |
| Appellate Division, First Department |
| Allan B. Mendelsohn, as Chapter 7 Trustee of Hirsch Electric Co.,Inc., Debtor, Appellant, v City of New York (19th Precinct),Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), forrespondent.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or aboutFebruary 9, 2011, which, to the extent appealed from, granted defendant City of New York'scross motion for summary judgment dismissing the complaint as time-barred, unanimouslyaffirmed, without costs.
The court correctly determined that, pursuant to CPLR 213 (2), this action for breach of aconstruction contract had to be commenced within six years of substantial completion of thework and was time-barred (see Phillips Constr. Co. v City of New York, 61 NY2d 949,951 [1984]; 645 First Ave. Manhattan Co. v Silhouette Drywall Sys., 212 AD2d 394[1995]). The City submitted a letter dated May 21, 1992 showing that the work was substantiallycomplete on April 9, 1992, more than six years before plaintiff commenced this action.
Plaintiff failed to raise an issue of fact as to when the work was substantially complete. Tothe contrary, plaintiff's own document, a contractor's certificate seeking partial payment datedMay 7, 1992, indicates that 98% of the work was complete as of that date. The June 29, 1992 andAugust 5, 1992 memoranda, and the October 1, 1993 and November 22, 1993 letters, merelyshow that work incidental to the electrical work on the building, namely a fire alarm system anditems on a punch list, was incomplete (see Phillips Constr., 61 NY2d at 951).
Additionally, plaintiff's purported claim to recover its guarantee monies pursuant to article 24of the contract has not been considered here, as it was not raised below, either in the pleadings orthe motion papers and thus, was not preserved for appellate review.
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Tom, J.P., Saxe, Moskowitz, DeGrasse and Abdus-Salaam, JJ.