CORBEX INC v. NEW YORK CITY HOUSING AUTHORITY (2025)

Judgment (denominated an order), Supreme Court, New York County (Verna L. Saunders, J.), entered January 23, 2024, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss plaintiff's cause of action for breach of contract, unanimously affirmed, without costs.

Supreme Court properly dismissed the breach of contract claim for plaintiff's failure to comply with the contractual notice of claim provisions, which are conditions precedent to the settlement of any claim or the commencement of any proceeding (see A.H.A. Gen. Constr., Inc. v. New York City Hous. Auth., 92 N.Y.2d 20, 30–31, 677 N.Y.S.2d 9, 699 N.E.2d 368 [1998]).  New York City Housing Authority established prima facie entitlement to dismissal with “documentary evidence showing that [plaintiff] failed to serve a notice of claim within 20 days of the accrual date[ ] of the alleged claim[ ]” (Universal Constr. Resources, Inc. v. New York City Hous. Auth., 192 A.D.3d 470, 470, 144 N.Y.S.3d 162 [1st Dept. 2021];  see also Lakhi Gen. Contr., Inc. v. New York City Hous. Auth., 189 A.D.3d 480, 481, 138 N.Y.S.3d 5 [1st Dept. 2020]).  We reject plaintiff's contentions regarding waiver and estoppel where the contract included a no estoppel and no waiver clause, and plaintiff was not prevented from complying with the notice and reporting requirements contained in the contract (see A.H.A. Gen., Inc., 92 N.Y.2d at 31, 677 N.Y.S.2d 9, 699 N.E.2d 368;  see also P.A.L. Envtl. Safety Corp. v. APS Contr., Inc., 200 A.D.3d 411, 411, 154 N.Y.S.3d 774 [1st Dept. 2021], lv denied 38 N.Y.3d 911, 2022 WL 2838381 [2022]).

General Municipal Law § 50–e (5), which permits leave to file a late notice of claim, does not apply here (see Pope Contr., Inc. v. New York City Hous. Auth., 214 A.D.3d 519, 521, 186 N.Y.S.3d 150 [1st Dept. 2023]).  Plaintiff's reliance on Public Authorities Law § 1744 for the proposition that its claim accrued on the date payment for the amount claimed was denied is also unpersuasive as that statute governs accrual of a claim as against the New York City School Construction Authority, not NYCHA, and there is no basis to extend that statute here (see C.S.A. Contr. Corp. v. New York City School Const. Auth., 5 N.Y.3d 189, 193, 800 N.Y.S.2d 123, 833 N.E.2d 266 [2005]).  In any event, even using that accrual date, plaintiff's notice of claim was still untimely.