Opinion
2013-05-9
START ELEVATOR, INC., Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Agulnick & Gogel, LLC, Great Neck (William A. Gogel of counsel), for appellant. Kelly D. MacNeal, New York (Lauren L. Esposito of counsel), for respondent.
Agulnick & Gogel, LLC, Great Neck (William A. Gogel of counsel), for appellant. Kelly D. MacNeal, New York (Lauren L. Esposito of counsel), for respondent.
GONZALEZ, P.J., TOM, SWEENY, RENWICK, RICHTER, JJ.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered June 1, 2010, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff's contention that its April 28 and May 4, 2004 letters constituted a notice of claim pursuant to section 23 of the parties' contract is unavailing ( see e.g. Bat–Jac Contr. v. New York City Hous. Auth., 1 A.D.3d 128, 129, 766 N.Y.S.2d 352 [1st Dept. 2003] ). The April 28 letter merely stated that plaintiff would forward an estimate for the increased cost due to the change from ceramic tiles to glazed structural brick; however, section 23(a) requires that a notice of claim state the “amount of the extra cost.” Although plaintiff's May 4 letter stated the amount of the extra cost, it was “ not designated as a notice of claim” ( Bat–Jac, 1 A.D.3d at 128, 766 N.Y.S.2d 352;see also Everest Gen. Contrs. v. New York City Hous. Auth., 99 A.D.3d 479, 479–480, 951 N.Y.S.2d 671 [1st Dept. 2012] ), and instead was a change order form requiring defendant to accept and approve the change by signing it. Defendant's signature does not appear on the May 4 letter.
Even assuming that plaintiff's letters constitute a notice of claim, the release plaintiff signed bars this action ( see e.g. Northgate Elec. Corp. v. Barr & Barr, Inc., 61 A.D.3d 467, 468, 877 N.Y.S.2d 36 [1st Dept. 2009] ).
We decline to consider the argument, raised for the first time in plaintiff's appellate reply brief, that sections 8, 22, and 23 are inconsistent, creating ambiguity and indefiniteness ( see e.g. Shia v. McFarlane, 46 A.D.3d 320, 321, 847 N.Y.S.2d 530 [1st Dept. 2007] ). We also decline to consider plaintiff's fact-based waiver and estoppel arguments, raised for the first time on appeal ( see e.g. Mount Vernon Fire Ins. Co. v. William & Georgia Corp., 194 A.D.2d 366, 367, 598 N.Y.S.2d 257 [1st Dept. 1993] ).
We have considered plaintiff's remaining arguments and find them to be without merit.