| Fahs Constr. Group, Inc. v State of New York |
| 2014 NY Slip Op 08885 [123 AD3d 1311] |
| December 18, 2014 |
| Appellate Division, Third Department |
[*1]
| Fahs Construction Group, Inc., Appellant, v State ofNew York, Respondent. |
Hinman, Howard & Kattell, LLP, Binghamton (Paul T. Sheppard of counsel),for appellant.
Eric T. Schneiderman, Attorney General, Albany (Owen W. Demuth of counsel), forrespondent.
McCarthy, J.P. Appeal from an order of the Court of Claims (Collins, J.), enteredMarch 19, 2013, which, among other things, granted defendant's motion for summaryjudgment dismissing the claim.
In the summer of 2003, the parties entered into a contract for claimant to reconstructa bridge and stretch of highway. Claimant completed the project after the deadline, whichclaimant alleges was due to delays allegedly caused by defendant and work being addedto the contract without defendant providing for sufficient extensions. Claimant filed thisclaim alleging breach of contract and breach of the implied covenant of good faith andfair dealing. The Court of Claims granted defendant's motion for summary judgmentdismissing the claim and denied, as academic, claimant's cross motion to amend theclaim. Claimant appeals.
The Court of Claims properly granted defendant's motion for summary judgment.Claimant alleged seven specific items of damages, each of which was subject to contractprovisions requiring that notice be provided to defendant within 10 work days and thatcertain records be kept and submitted to defendant. The contract provided that "[t]henotification and record-keeping provisions of this Contract shall be strictly complied withfor disputes of any nature and are a condition precedent to any recovery" (see Fahs Rolston Paving Corp. vCounty of Chemung, 43 AD3d 1192, 1194 [2007]). No party can prevail on abreach of contract claim if that party has failed to perform a specified conditionprecedent (see Phoenix Signal& Elec. Corp. v New York State Thruway Auth., 90 AD3d 1394,1396-1397 [2011]). According to the contract, the contractor's failure to supply therequired notice and submit the required records is [*2]deemed a waiver of any related claim by the contractor,"notwithstanding the fact that [defendant] may have actual notice of the facts andcircumstances which comprise such dispute and is not prejudiced by said failure."
Defendant established its entitlement to summary judgment by submitting proof thatclaimant did not comply with the condition precedent, in that claimant did not providetimely notice for the alleged items of damages and did not timely submit the requiredrecords (see Accadia SiteContr., Inc. v Erie County Water Auth., 115 AD3d 1351, 1352 [2014]). Inresponse, claimant did not provide proof that it complied with the notice andrecord-keeping requirements, but argued that defendant waived noncompliance, hadactual knowledge of the disputed items and prevented claimant from complying withthose requirements. Those arguments are unavailing.
Defendant's discussion of the merits of the disputed items during the disputeresolution process did "not evince an explicit, unmistakable, and unambiguous waiver"of the notice and record-keeping requirements (Matter of Chenango Forks Cent. School Dist. v New York StatePub. Empl. Relations Bd., 95 AD3d 1479, 1484 [2012], affd 21 NY3d255 [2013]; see Silverstein Props. v Paine, Webber, Jackson & Curtis, 104AD2d 769, 771 [1984], affd 65 NY2d 785 [1985]). Claimant's allegations ofdefendant's actual knowledge of any disputes are unavailing, based on the contractlanguage quoted above (see Phoenix Signal & Elec. Corp. v New York StateThruway Auth., 90 AD3d at 1397). While "a party to a contract 'cannot rely on thefailure of another to perform a condition precedent where he [or she] has frustrated orprevented the occurrence of the condition[,]' . . . the relevant inquiry is notsimply one of [a party's] bad faith or negligence in the performance of the contract butadditionally whether the alleged misconduct prevented or hindered [the other party's]compliance with the notice and reporting requirements" (A.H.A. Gen. Constr. v NewYork City Hous. Auth., 92 NY2d 20, 31 [1998], quoting Kooleraire Serv. &Installation Corp. v Board of Educ. of City of N.Y., 28 NY2d 101, 106 [1971]).Accepting claimant's allegations as true, claimant may have raised an issue as tomisconduct by defendant as relates to the contract in general, but nothing that wouldprevent claimant from asserting notice or submitting records (see A.H.A. Gen.Constr. v New York City Hous. Auth., 92 NY2d at 33; Phoenix Signal &Elec. Corp. v New York State Thruway Auth., 90 AD3d at 1397; see alsoAccadia Site Contr., Inc. v Erie County Water Auth., 115 AD3d at 1353).
Finally, the Court of Claims did not err in dismissing the cause of action for breachof the covenant of good faith and fair dealing, as "the implied obligation is only 'in aidand furtherance of other terms of the agreement of the parties,' and claimant has notalleged any applicable term of the [contract] to support it" (Trump on the Ocean, LLC v Stateof New York, 79 AD3d 1325, 1326 [2010], lv dismissed and denied 17NY3d 770 [2011], quoting Murphy v American Home Prods. Corp., 58 NY2d293, 304 [1983] [internal citation omitted]). Essentially, "that cause of action wasduplicative of the breach of contract cause[ ] of action" (DiPizio Constr. Co., Inc. v NiagaraFrontier Transp. Auth., 107 AD3d 1565, 1567 [2013]).
Egan Jr., Lynch, Devine and Clark, JJ., concur. Ordered that the order is affirmed,without costs.