| Accadia Site Contr., Inc. v Erie County Water Auth. |
| 2014 NY Slip Op 02194 [115 AD3d 1351] |
| March 28, 2014 |
| Appellate Division, Fourth Department |
| Accadia Site Contracting, Inc., Appellant, v Erie CountyWater Authority, Respondent. |
—[*1] Damon Morey LLP, Buffalo (Amber E. Storr of counsel), fordefendant-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County(John A. Michalek, J.), entered April 9, 2013. The order and judgment granteddefendant's motion for summary judgment.
It is hereby ordered that the order and judgment so appealed from is unanimouslyaffirmed without costs.
Memorandum: In this action for breach of contract and related relief, plaintiffappeals from an order and judgment granting defendant's motion for summary judgmentdismissing the complaint. Initially, we note that plaintiff does not raise any issuesconcerning the dismissal of the third cause of action and has therefore abandoned anycontentions with respect to that cause of action (see Ciesinski v Town of Aurora,202 AD2d 984, 984 [1994]). In addition, we do not address plaintiff's contention, raisedfor the first time on appeal, that Supreme Court erred in granting summary judgment indefendant's favor because defendant failed to plead the defense of failure to comply witha condition precedent with sufficient specificity (see CPLR 3015 [a]). "An issuemay not be raised for the first time on appeal . . . where it 'could have beenobviated or cured by factual showings or legal countersteps' in the trial court" (Oramv Capone, 206 AD2d 839, 840 [1994], quoting Telaro v Telaro, 25 NY2d433, 439 [1969], rearg denied 26 NY2d 751 [1970]). Here, defendant could haveattempted to cure that alleged deficiency by seeking leave to amend the answer (see generally Smith vBesanceney, 61 AD3d 1336, 1336-1337 [2009]). In any event, defendant'sfailure to plead that defense in its answer with sufficient specificity does not preclude anaward of summary judgment based on that defense. " '[A] court may grant summaryjudgment based upon an unpleaded defense where[, as here,] reliance upon that defenseneither surprises nor prejudices the plaintiff' " (Schaefer v Town of Victor, 77 AD3d 1346, 1347 [2010]).
Contrary to plaintiff's further contention, the court properly granted defendant'smotion on the ground that plaintiff failed to satisfy a condition precedent. "[A] conditionprecedent is 'an act or event, other than a lapse of time, which, unless the condition isexcused, must occur before a duty to perform a promise in the agreement arises' " (MHR Capital Partners LP v [*2]Presstek, Inc., 12 NY3d 640, 645 [2009], quotingOppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 NY2d 685, 690[1995]). Here, paragraph 10.05 of the contract mandated that plaintiff provide the projectengineer with "[w]ritten notice stating the general nature of each Claim, dispute, or othermatter" within 20 days of the event giving rise to the claim. It is well settled that"[c]ontract clauses that 'require the contractor to promptly notice and document its claimsmade under the provisions of the contract governing the substantive rights and liabilitiesof the parties . . . are . . . conditions precedent to suit orrecovery' " (Rifenburg Constr.,Inc. v State of New York, 90 AD3d 1498, 1498 [2011], quoting A.H.A.Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 30-31 [1998], reargdenied 92 NY2d 920 [1998]). We conclude that "defendant established as a matter oflaw that plaintiff was obligated to seek compensation for the extra work pursuant to theterms of the contract when it learned that the [relocation of the lateral lines] constitutedextra work and that plaintiff failed to do so in a timely manner" (Adonis Constr., LLC v BattleConstr., Inc., 103 AD3d 1209, 1210 [2013]). Consequently, defendant met itsburden on the motion by establishing that plaintiff did not timely comply with the noticeand reporting requirements of the contract, and plaintiff failed to raise a triable issue offact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557,562 [1980]).
Plaintiff further contends that it was excused from compliance with the notice andreporting requirements of paragraph 10.05 based on defendant's breach of the contract;that such compliance was prevented or hindered because of misconduct by defendant;and that such compliance would have been futile. Those contentions are unavailing.First, it is well settled that a "party's obligation to perform under a contract is onlyexcused where the other party's breach of the contract is so substantial that it defeats theobject of the parties in making the contract" (Frank Felix Assoc., Ltd. v AustinDrugs, Inc., 111 F3d 284, 289 [1997]; see Robert Cohn Assoc., Inc. v Kosich, 63 AD3d 1388,1389 [2009]), and plaintiff failed to raise a triable issue of fact whether defendant'sactions defeated the parties' objectives in entering into the contract. With respect toplaintiff's remaining two contentions, we conclude that "there is no evidence to support[plaintiff]'s contention[s] that [defendant's misconduct] frustrated its ability to complywith the applicable notice provision or that notice to [the engineer] would have beenfutile" (Matter of BrendaDeLuca Trust [Elhannon, LLC], 108 AD3d 902, 904 [2013]). We note in anyevent with respect to plaintiff's second contention that, although "it is undisputedly therule that one who frustrates another's performance cannot hold that party in breach"(Water St. Dev. Corp. v City of New York, 220 AD2d 289, 290 [1995], lvdenied 88 NY2d 809 [1996]; see Young v Hunter, 6 NY 203, 207 [1852]),plaintiff failed to raise a triable issue of fact whether its performance with the notice andreporting requirements was prevented or hindered by defendant's alleged misconduct(see A.H.A. Gen. Constr., 92 NY2d at 34; DiPizio Constr. Co., Inc. v Niagara Frontier Transp. Auth., 107AD3d 1565, 1566 [2013]; cf. Turbo Carpentry Corp. v Brancadoro, 21 AD3d 479,480 [2005]). Present—Smith, J.P., Fahey, Carni and Sconiers, JJ.