Opinion
9559 Index 101419/15
06-06-2019
In re INTERCONTINENTAL CONSTRUCTION CONTRACTING, INC., Petitioner–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Respondent–Respondent.
Marco & Sitaras, PLLC, New York (George Sitaras of counsel), for appellant. Kelly D. MacNeal, New York (Lauren L. Esposito of counsel), for respondent.
Marco & Sitaras, PLLC, New York (George Sitaras of counsel), for appellant.
Kelly D. MacNeal, New York (Lauren L. Esposito of counsel), for respondent.
Friedman, J.P., Tom, Kapnick, Kahn, JJ.
Judgment, Supreme Court, New York County (Shlomo S. Hagler, J.), entered July 14, 2017, denying the petition to annul respondent's determination, dated April 7, 2015, which declared petitioner in default under a contract with respondent and dismissed its breach of contract claims with prejudice, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
Petitioner failed to submit a notice of claim before commencing this proceeding, as required by Public Housing Law § 157(1) (see Matter of Silvernail v. Enlarged City School Dist. of Middletown , 40 A.D.3d 1004, 836 N.Y.S.2d 286 [2d Dept. 2007] ). Petitioner seeks mandamus to review respondent's determination; it does not seek judicial enforcement of a legal right derived through enactment of positive law, but seeks to vindicate a private right (see id. at 1005, 836 N.Y.S.2d 286 ; Matter of O'Connor v. Board of Educ. of Greenburgh–Graham Union Free School Dist. , 11 A.D.3d 616, 782 N.Y.S.2d 663 [2d Dept. 2004] ; Matter of McGovern v. Mount Pleasant Cent. Sch. Dist. , 114 A.D.3d 795, 795–796, 980 N.Y.S.2d 522 [2d Dept. 2014], affd 25 N.Y.3d 1051, 12 N.Y.S.3d 11, 33 N.E.3d 1280 [2015] ; Matter of Lewandowski v. Clyde–Savannah Cent. Sch. Dist. Bd. of Educ. , 143 A.D.3d 1278, 38 N.Y.S.3d 498 [4th Dept. 2016] ; see generally Matter of Flosar Realty LLC v. New York City Hous. Auth. , 127 A.D.3d 147, 155–156, 5 N.Y.S.3d 382 [1st Dept. 2015] [discussing applicability of notice of claim requirement to petition seeking judicial enforcement of legal right derived through enactment of positive law] ).
Although petitioner alleged in the amended petition that it satisfied the requirements of Public Housing Law § 157(1), the article 78 court correctly determined that the letters referred to in the petition and attached thereto did not constitute notices of claim. The exhibits, which either were sent by respondent itself or were sent by petitioner before respondent declared it in default, did not provide sufficient notice of petitioner's claim in this article 78 proceeding.
The court also correctly dismissed petitioner's claims for contract damages with prejudice, as petitioner failed to submit a notice of claim as required by Section 23 of the parties' contract (see Metropolitan Bridge & Scaffolds Corp. v. New York City Hous. Auth. , 138 A.D.3d 423, 27 N.Y.S.3d 862 [1st Dept. 2016] ; Centennial El. Indus., Inc. v. New York City Hous. Auth. , 129 A.D.3d 449, 450, 11 N.Y.S.3d 564 [1st Dept. 2015] ). The letters sent by petitioner were not delineated notices of claim, and did not state either the nature or the amount of the claims (see Hi–Tech Constr. & Mgt. Servs. Inc. v. Housing Auth of the City of N.Y. , 125 A.D.3d 542, 4 N.Y.S.3d 189 [1st Dept. 2015], lv denied 26 N.Y.3d 908, 2015 WL 6143426 [2015] ). The letters were also sent by petitioner before the accrual date of at least two of the claims, rather than within 20 days after the claims arose (see Everest Gen. Contrs. v. New York City Hous. Auth. , 99 A.D.3d 479, 951 N.Y.S.2d 671 [1st Dept. 2012] ).
Even had petitioner originally brought its breach of contract claims in a separate plenary action, the claims would be barred due to petitioner's failure to submit a proper notice of claim pursuant to Section 23 of the parties' contract, thus rendering academic the relief it seeks here, i.e., the dismissal of the contract claims without prejudice (see generally Matter of Gottlieb Contr., Inc. v. City of New York , 49 A.D.3d 409, 858 N.Y.S.2d 87 [1st Dept. 2008] ).
We have considered petitioner's remaining arguments and find them unavailing.