Opinion
325 Index No. 652705/18 Case No. 2022-00104
05-25-2023
ROCKMORE CONTRACTING CORP., et al., Plaintiffs–Appellants, v. CITY OF NEW YORK, Defendant–Respondent.
Muchmore & Associates PLLC, Brooklyn (Marwan F. Sehwail of counsel), for appellants. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Lauren L. O'Brien of counsel), for respondent.
Muchmore & Associates PLLC, Brooklyn (Marwan F. Sehwail of counsel), for appellants.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Lauren L. O'Brien of counsel), for respondent.
Manzanet–Daniels, J.P., Singh, Moulton, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered July 2, 2021, which granted defendant City of New York's motion to dismiss the causes of action for breach of contract (the first and fourth causes of action) as time-barred by a contractual limitations clause, unanimously modified, on the law, to deny the motion as to any claim for delay damage that arose after issuance of the certificates of substantial completion and to reinstate those claims, and otherwise affirmed, without costs.
Supreme Court correctly granted the motion as time barred insofar as it asserted claims that accrued before the City issued certificates of substantial completion. Plaintiffs commenced this action more than six months after the City had issued the certificates, thus rendering many of plaintiffs’ claims for delay damage untimely under article 56 of the parties’ construction agreements (see Picone/WDF, JV v. City of New York, 193 A.D.3d 433, 434, 141 N.Y.S.3d 686 [1st Dept. 2021] ). We reject plaintiffs’ argument that the certificates were technically deficient or prematurely issued, as those issues fell within the ambit of article 27, which provides for alternative dispute resolution. Furthermore, plaintiffs failed to seek timely review of the certificates within 30 days of the determination to issue them, as required by the agreements’ alternative dispute resolution process (see Kalisch–Jarcho, Inc. v. City of New York, 72 N.Y.2d 727, 734, 536 N.Y.S.2d 419, 533 N.E.2d 258 [1988] ).
We also reject plaintiffs’ argument that the City should be equitably estopped from relying on a contractual six-month limitations provision because City representatives gave assurances that they would consider plaintiffs’ claims for delay damages at the conclusion of the construction project (see Bender v. New York City Health & Hosps. Corp., 38 N.Y.2d 662, 668, 382 N.Y.S.2d 18, 345 N.E.2d 561 [1976] ). The documentary evidence does not support a basis to reasonably infer that the City intentionally misled plaintiffs to lull them into permitting the contractual limitations period to run. Moreover, the construction agreements contained merger, no estoppel, and no oral modification provisions, thus undermining any claim to reasonable reliance upon the alleged assurances (see Zumpano v. Quinn, 6 N.Y.3d 666, 674, 816 N.Y.S.2d 703, 849 N.E.2d 926 [2006] ; Hudson Ins. Co. v. City of New York, 170 A.D.3d 622, 623, 96 N.Y.S.3d 558 [1st Dept. 2019] ). Nor did the construction agreements oblige the City to review and decide any claims for delay damages.
However, article 56.2.1 permits plaintiffs to seek delay damages that arose after issuance of the certificates of substantial completion, and their factual allegations as to those claims have not been refuted on this motion. Although Supreme Court cited article 13.10, the "no damage for delay" provision, to dismiss the first and fourth causes of action in their entirety, it appears that the claims for post-certificate damages are not subject to dismissal based on that clause. Indeed, the City's appeal brief does not argue that article 13.10 bars those claims as a matter of law.
We have considered plaintiffs’ remaining arguments and find them unavailing.