Opinion
2012-10-9
EVEREST GENERAL CONTRACTORS, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
King & King, LLP, Long Island City (Brendan J. Hennessey of counsel), for appellant. Kelly D. Macneal, New York (Lauren L. Esposito of counsel), for respondent.
King & King, LLP, Long Island City (Brendan J. Hennessey of counsel), for appellant. Kelly D. Macneal, New York (Lauren L. Esposito of counsel), for respondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 14, 2010, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff failed to provide timely written notice of its intention to make a claim for damages arising out of defendant's delay, a condition precedent to commencing an action pursuant to section 23 of the parties' contract ( see A.H.A. Gen. Constr., Inc. v. New York City Hous. Auth., 92 N.Y.2d 20, 30–31, 677 N.Y.S.2d 9, 699 N.E.2d 368 [1998];4–A Gen. Contr. Corp. v. New York City Hous. Auth., 28 A.D.3d 261, 811 N.Y.S.2d 917 [1st Dept. 2006] ). Plaintiff's July 26, 2004 letter which was allegedly sent to defendant, does not satisfy the requirement of written notice. The letter was not designated as a notice of claim, gave no indication of an intent to make a claim, and was sent long before the March 2006 accrual of plaintiff's claim rather than within 20 days of the date the claim arose ( see Bat–Jac Contr. v. New York City Hous. Auth., 1 A.D.3d 128, 766 N.Y.S.2d 352 [1st Dept. 2003] ).