| Phoenix Signal & Elec. Corp. v New York State ThruwayAuth. |
| 2011 NY Slip Op 09245 [90 AD3d 1394] |
| December 22, 2011 |
| Appellate Division, Third Department |
| Phoenix Signal and Electric Corporation, Appellant, v New YorkState Thruway Authority, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
Garry, J. Appeal from an order of the Court of Claims (Collins, J.), entered August 25, 2010,which, among other things, partially granted defendant's motion for summary judgmentdismissing the claim.
In January 2005, claimant entered into a contract with defendant to install closed circuittelevision cameras and overhead variable message signs at several points along the New YorkState Thruway. The contract required the work to be performed in accordance with certainproject plans and the Department of Transportation's "Standard Specifications," and permittedclaimant to request compensation for extra work exceeding the contract's requirements. Threesituations arose during the project that claimant contends required the performance of extra work:claimant was required to modify the preparation of concrete foundations by using a two-stageconcrete pour (hereinafter the two-stage claim), claimant's subcontractor encountered rock whiledrilling certain foundation holes (hereinafter the drilling claim), and a design error caused by theunexpected presence of a drainage catch basin required claimant to use custom-formed ratherthan prefabricated concrete median barriers (hereinafter the barrier claim).
In July 2005, claimant submitted notice forms called force account daily reports to theproject's engineer-in-charge (hereinafter EIC) for the drilling claim. In August 2006, claimant[*2]submitted force account daily reports pertaining to thetwo-stage and barrier claims. Defendant denied all three claims, and claimant commenced thisaction asserting breach of contract. Defendant moved for summary judgment dismissing theaction, and claimant cross-moved for summary judgment. The Court of Claims granteddefendant's motion as to the two-stage claim and the barrier claim, finding that claimant had notcomplied with the contract's notice and reporting requirements for either, and the two-stage claimdid not constitute extra work. The court found that claimant had provided timely notice of thedrilling claim, denied defendant's motion as to that claim, and denied claimant's cross motion forsummary judgment on all three claims. Claimant appeals.[FN1]
The Court of Claims correctly determined that claimant failed to comply with the contract'snotice provisions. Pursuant to the contract, if claimant believed that it had been ordered toperform extra work, it was required to notify the EIC in writing within 10 days, with copies toother specified officers. The contract further required claimant to submit force account reports tothe EIC on a daily basis while the extra work was being performed, in addition to certain periodicsummary reports, and to have the force account reports signed by the EIC. Defendantdemonstrated that claimant did not comply with these requirements by showing that no initialwritten notice and summary reports were ever submitted for either of the dismissed claims, thatno force account reports were submitted until more than a year after the work was performed, andthat those reports were not signed by the EIC as required by the contract. Further, defendantestablished that the two-stage pour method was required in order for claimant to complete theproject in accordance with the contract, and did not constitute extra work, by submitting thespecification that prohibited the method claimant had intended to use and an affidavit fromdefendant's engineer averring that this method was not permitted. Accordingly, defendant met itsinitial burden to establish its prima facie entitlement to judgment as a matter of law, shifting theburden to claimant to demonstrate the existence of issues of fact (see CPLR 3212 [b]; Consola v State of New York, 84AD3d 1557, 1559 [2011]; KemperIns. Cos. v State of New York, 70 AD3d 192, 199 [2009]).
Claimant did not meet this burden. First, as to the two-stage claim, there is no merit inclaimant's contention that the contract permitted corrugated metal pipe casings to be leftpermanently in place. The plain language of the specification in question explicitly requires theremoval of such casings. A note on the project plans repeating this requirement with particularreference to drilling through rock does not, as claimant contends, replace the generalspecification or limit the removal requirement to drilling through rock. Contrary to claimant'sassertion, a provision in the specifications stating that the various components of the contractcomplement one another in a declining order of preference, beginning with the project plans,does not cause the note to supersede the specification; the two provisions simply repeat the samerequirement, and do not conflict with one another.
As to the notice requirements, the subject contract explicitly provides that strict compliancewith its notification and record-keeping provisions is required as a condition [*3]precedent to any recovery, and that claims for extra work aredeemed waived in the absence of such compliance. When such a condition is expressly agreedupon by the contracting parties, it "must be literally performed" (Oppenheimer & Co. vOppenheim, Appel, Dixon & Co., 86 NY2d 685, 690 [1995]). " '[N]o action for breach ofcontract lies where the party seeking to enforce the contract has failed to perform a specifiedcondition precedent' " (Carr vBirnbaum, 75 AD3d 972, 973 [2010], quoting Navilia v Windsor Wolf Rd. Props.Co., 249 AD2d 658, 659 [1998]). Accordingly, claimant's failure to comply with itscontractual obligation to provide the required notices and reports constitutes a waiver of the extrawork claims (see Fahs Rolston PavingCorp. v County of Chemung, 43 AD3d 1192, 1194 [2007]; Kingsley Arms, Inc. v Sano Rubin Constr.Co., Inc., 16 AD3d 813, 814 [2005]). In light of the contractual language, claimant'scontention that defendant had actual notice of the alleged extra work would be unavailing even ifit had shown—as it did not—an "extensive record of timely written correspondenceand contact between the contractor and agency" (G. De Vincentis & Son Constr. v City ofOneonta, 304 AD2d 1006, 1008 [2003]).
Nor did claimant demonstrate that defendant frustrated its efforts to comply with the noticeprovisions (see A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 30-31[1998]; Bogdan & Faist v CAI Wireless Sys., 295 AD2d 849, 852-853 [2002]). Even if,as claimant alleges, a project inspector refused to sign its force account reports, the contractrequired such forms to be signed by the EIC, rather than the inspector, and claimant did notexplain how the inspector's alleged refusal prevented it from submitting the unsigned reportsuntil almost a year later, rather than within one day as required by the contract, or from timelyfiling the other required notices and reports.[FN2]
Finally, we reject claimant's contention that defendant was not prejudiced. The purpose ofnotice provisions in public contracts is to "provide public agencies with timely notice ofdeviations from budgeted expenditures . . . and allow them to take early steps toavoid extra or unnecessary expense, make any necessary adjustments, mitigate damages andavoid the waste of public funds" (A.H.A. Gen. Constr. v New York City Hous. Auth., 92NY2d at 34). Claimant's failure to provide defendant with the required notice preventeddefendant from taking steps to mitigate the cost of the alleged extra work while it was beingperformed and therefore caused inherent prejudice. Accordingly, the Court of Claims properlygranted partial summary judgment to defendant.
Spain, J.P., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Claimant's brief limits itsarguments on appeal to the dismissal of the two-stage and barrier claims, and we therefore deemany challenge to the denial of its cross motion to be abandoned (see Czynski v State of New York, 53AD3d 881, 882 n [2008], lv denied 11 NY3d 715 [2009]).
Footnote 2: The inspector submitted anaffidavit denying that he had refused to sign any records pertaining to disputed work or extrawork.