MARIC MECHANICAL INC v. NEW YORK CITY HOUSING AUTHORITY (2024)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered November 9, 2023, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1), unanimously affirmed, without costs.

The court properly granted defendant's motion to dismiss plaintiff contractor's claims for compensation for alleged “extra work” under the parties' contract.  The extra work entailed building 206 temporary shoring towers, as opposed to the 40 towers provided for in the temporary shoring design in defendant's drawings available for review by the contract bidders.  Plaintiff conceded that it did not perform, as contemplated under the contract, a pre-bid project work site inspection (see Seville Constr. v. New York City Hous. Auth., 247 A.D.2d 69, 73–74, 677 N.Y.S.2d 359 [1st Dept. 1998], lv denied 93 N.Y.2d 803, 689 N.Y.S.2d 16, 711 N.E.2d 201 [1999];  Lake Constr. & Dev. Corp. v. City of New York, 211 A.D.2d 514, 515, 621 N.Y.S.2d 337 [1st Dept. 1995]).  Further, plaintiff offered only a conclusory claim that its engineer's post-contract determination of the need to perform the extra work could not reasonably have been made based on a pre-bid site inspection.  The contract documents expressly warned plaintiff that defendant did not assume responsibility for the accuracy or completeness of the information regarding the existing conditions needed for performance of the work (see Barsotti's, Inc. v. Consolidated Edison Co. of N.Y., 245 A.D.2d 178, 179, 666 N.Y.S.2d 182 [1st Dept. 1997]).