| DiPizio Constr. Co., Inc. v Niagara Frontier Transp.Auth. |
| 2013 NY Slip Op 04487 [107 AD3d 1565] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| DiPizio Construction Company, Inc., Appellant, v NiagaraFrontier Transportation Authority, Respondent. (Appeal No.1.) |
—[*1] Hodgson Russ LLP, Buffalo (Benjamin M. Zuffranieri, Jr., of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.),entered October 11, 2012. The order granted the motion of defendant for partial summaryjudgment.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Defendant entered into a contract with plaintiff for the constructionand renovation of certain runways and taxiways at the Buffalo Niagara InternationalAirport. Following completion of the project, plaintiff commenced this action seekingdamages for, inter alia, breach of contract based upon allegations that defendant'sconduct caused delays in the work and defendant refused to grant extensions of time tocomplete the work. Supreme Court granted defendant's motion for partial summaryjudgment seeking dismissal of all but the 3rd and 15th causes of action, and a portion ofthe fourth cause of action. The ninth cause of action was previously dismissed. Weaffirm.
Contrary to plaintiff's contention, defendant established that plaintiff failed tocomply with the notice and reporting requirements contained in the contract. Thus, weconclude that the court properly granted those parts of defendant's motion with respect tothe first, second, fifth, sixth, and seventh causes of action, as well as the 10th and 14thcauses of action. Clauses of a contract that "require the contractor to promptly notice anddocument its claims made under the provisions of the contract governing the substantiverights and liabilities of the parties . . . are . . . conditionsprecedent to suit or recovery" (A.H.A. Gen. Constr. v New York City Hous.Auth., 92 NY2d 20, 30-31 [1998], rearg denied 92 NY2d 920 [1998]). Here,the contract required that claims for extra costs due to delays "shall be in sufficient detailto enable the Engineer to ascertain the basis and amount of said claims" and that "[a]nyclaim . . . for equitable adjustment on account of delay for any cause mustbe accompanied by a revised progress schedule reflecting the effects of the delay andproposals to minimize those effects." The contract further provided that "[f]ailure tosubmit such information and details will be sufficient cause for denying the Contractor'sclaims." We [*2]conclude that defendant established thatplaintiff failed to comply with those notice and reporting requirements, and plaintiff didnot raise a triable issue of fact in opposition (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Contrary to plaintiff's further contention, the"assertion that . . . [it was] extremely difficult to calculate the extra. . . costs does not justify [plaintiff's] failure to comply with the notice andreporting requirements of the contract" (Rifenburg Constr., Inc. v State of New York, 90 AD3d1498, 1499 [2011]).
Plaintiff further contends that the court erred in granting defendant's motion insofaras it sought summary judgment dismissing that part of the fourth cause of action seekingdamages caused by defendant's alleged refusal to allow plaintiff to use half-inch thicksteel plates as a temporary measure for covering holes on the airport runways andtaxiways. We reject that contention. Defendant established that the contract did not allowplaintiff to use unsafe materials and that three separate engineering firms, including oneemployed by plaintiff, determined that half-inch thick steel plates could not support theweight of the aircraft that used the airport, and plaintiff failed to raise an issue of fact(see generally Zuckerman, 49 NY2d at 562).
We also reject plaintiff's contention that the court erred in granting that part ofdefendant's motion with respect to the eighth cause of action, for breach of the duty ofgood faith and fair dealing, inasmuch as that cause of action was duplicative of thebreach of contract causes of action (see Utility Servs. Contr., Inc. v Monroe County Water Auth., 90AD3d 1661, 1662 [2011], lv denied 19 NY3d 803 [2012]; Amcan Holdings, Inc. v CanadianImperial Bank of Commerce, 70 AD3d 423, 426 [2010], lv denied 15NY3d 704 [2010]). Likewise, the court properly granted those parts of defendant'smotion with respect to the 11th cause of action, for quantum meruit, and the 12th causeof action, for unjust enrichment, as duplicative of the breach of contract causes of action(see Leo J. Roth Corp. vTrademark Dev. Co., Inc., 90 AD3d 1579, 1581 [2011]). Contrary to plaintiff'sfurther contention, the court properly granted that part of defendant's motion with respectto the 13th cause of action, for promissory estoppel, because "the representations madeby defendant[ ] d[id] not constitute a clear and unambiguous promise to plaintiff"(Chemical Bank v City of Jamestown, 122 AD2d 530, 531 [1986], lvdenied 68 NY2d 608 [1986]; see New York City Health & Hosps. Corp. v St. BarnabasHosp., 10 AD3d 489, 491 [2004]). In light of our determination, we do notaddress plaintiff's remaining contentions. Present—Scudder, P.J., Smith, Centraand Lindley, JJ.