Opinion
April 11, 1996
Appeal from the Supreme Court, New York County (Walter Schackman, J.).
The court did not err in granting partial summary judgment. The motion, supported by an affirmation of defendant's attorney and adequate documentary evidence, was legally sufficient ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325). Nor was defendant required to plead plaintiff's non-compliance with Article 56 of the contract as an affirmative defense, as the answer itself specifically set forth a denial of plaintiff's compliance with the contract conditions with particularity ( see, CPLR 3015).
The court also properly granted partial summary judgment dismissing plaintiff's claims for extra and protest work as plaintiff had failed to comply with the specified notification requirements of Articles 56 and 65 of the contract ( see, Smith Elec. Contrs. v. City of New York, 181 A.D.2d 542). Further, the exculpatory language of Articles 15 and 16 of the contract barred the delay claims ( see, Orlando Contr. Corp. v. City of New York, 222 A.D.2d 244), and the court properly found no evidence of bad faith or gross negligence which would trigger exceptions from the protection of the exculpatory language ( see, Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297). Nor did the court err in refusing to consider the untimely affidavit of plaintiff's president since the excuses for failure to timely submit it were unacceptable.
Concur — Murphy, P.J., Sullivan, Rosenberger, Rubin and Nardelli, JJ.