SCALAMANDRE OLIVEIRA JV II v. New York Geomatics, Inc., et al., Defendants. (2025)

Judgment, Supreme Court, New York County (Andrew Borrok, J.), entered December 19, 2023, after a nonjury trial, awarding plaintiff Scalamandre/Oliveira, JV II (SOJV) $15,347,143.20, and bringing up for review an order, same court and Justice, entered on or about November 28, 2023, which, to the extent appealed from as limited by the briefs, found in favor of SOJV and against defendants Judlau Contracting, Inc. (Judlau), Travelers Casualty and Surety Company of America, Zurich American Insurance Company, and Liberty Mutual Insurance Company, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded to Supreme Court.

The court should not have awarded SOJV damages for delays and crane costs.  SOJV failed to file a timely notice of claim, which is expressly made a prerequisite to recovery under Section 8 of the parties’ subcontract and which is subject to strict construction as a matter of public policy (see A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d 20, 33–34, 677 N.Y.S.2d 9, 699 N.E.2d 368 [1998], rearg. denied 92 N.Y.2d 920, 680 N.Y.S.2d 461, 703 N.E.2d 273 [1998];  Bat–Jac Contr. v. New York City Hous. Auth., 1 A.D.3d 128, 129, 766 N.Y.S.2d 352 [1st Dept. 2003]).  SOJV was not excused or frustrated from giving notice, even if Judlau breached the subcontract (see S.J. Fuel Co., Inc. v. New York City Hous. Auth., 73 A.D.3d 413, 414, 899 N.Y.S.2d 603 [1st Dept. 2010]).  Nor was notice futile (cf.  J. Petrocelli Constr., Inc. v. Realm Elec. Contrs., Inc., 15 A.D.3d 444, 790 N.Y.S.2d 197 [2d Dept. 2005]).  Judlau did not waive the notice requirement (see Huff Enters. v. Triborough Bridge & Tunnel Auth., 191 A.D.2d 314, 317, 595 N.Y.S.2d 178 [1st Dept. 1993], lv denied 82 N.Y.2d 655, 602 N.Y.S.2d 804, 622 N.E.2d 305 [1993]).

Defendants do not appeal from the award to the extent of the $1,430,487.84 “Remaining Contract Balances, Retainage, Approved and Pending Change Orders” category.  Supreme Court set statutory interest as accruing from December 14, 2015.  Without addressing the appropriateness of that date, we remand for Supreme Court to establish a date or dates from which interest should be assessed on the $1,430,487.84 (see CPLR 5001[b]) and enter an amended judgment.

We have considered the remaining contentions and find them unavailing.