NICHOLAS INDUSTRIES CONSTRUCTION SERVICES INC v. NASDI LLC (2026)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered on or about January 7, 2025, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment insofar as it sought to void plaintiff's mechanic's lien as willfully exaggerated, and denied the motion insofar as it sought to dismiss the cause of action for breach of contract (first cause of action), unanimously modified, on the law, to grant defendants’ motion insofar as it sought to dismiss the cause of action for breach of contract, and otherwise affirmed, without costs.  The Clerk is directed to enter judgment accordingly.

Defendants established prima facie entitlement to summary judgment on the cause of action for breach of contract by submitting evidence that plaintiff failed to comply with the strict notice of claim requirements of the subcontract and therefore waived its right to assert a claim for the extra excavation work it performed (see APS Contrs., Inc. v. New York City Hous. Auth., 193 A.D.3d 628, 629, 148 N.Y.S.3d 91 [1st Dept. 2021] [“By failing to comply with the strict notice provisions of the public contract, plaintiff waived its claims”];  Northgate Elec. Corp. v. Barr & Barr, Inc., 61 A.D.3d 467, 468–469, 877 N.Y.S.2d 36 [1st Dept. 2009]).

Plaintiff's opposition failed to raise an issue of fact as to whether it was equitably estopped from complying with the notice of claim provisions because NASDI “hindered or prevented” it from doing so through its “bad faith, negligence or misconduct” (Trocom Constr. Corp. v. City of New York, 238 A.D.3d 433, 434, 231 N.Y.S.3d 480 [1st Dept. 2025]).  Plaintiff relies on emails and documents supposedly demonstrating that NASDI's disorganized and misleading accounting and communication lulled plaintiff into believing that it did not need to satisfy the subcontract's notice of claim requirements.  However, none of those documents demonstrates that NASDI prevented or hindered plaintiff's compliance with the subcontract's notice of claim requirements (see A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d 20, 34, 677 N.Y.S.2d 9, 699 N.E.2d 368 [1998] [there was “no showing that the Housing Authority's alleged misconduct impaired respondent's ability to fulfill these contractual undertakings”]).  Plaintiff's claim for extra work pursuant to section 6.2 of the subcontract must also be dismissed because plaintiff failed to comply with the subcontract's notice of claim provisions (see Five Star Contr. Cos., Inc. v. Fashion Inst. of Tech., 194 A.D.3d 405, 405–406, 143 N.Y.S.3d 196 [1st Dept. 2021]).

Because the breach of contract cause of action is being dismissed, plaintiff's cause of action to foreclose on its mechanic's lien must also be dismissed (see MCC Dev. Corp. v. Perla, 81 A.D.3d 474, 474, 916 N.Y.S.2d 102 [1st Dept. 2011] [holding that “Supreme Court correctly dismissed the complaint, discharged the mechanic's lien and cancelled the notice of pendency on the ground that plaintiff failed to satisfy the contract's conditions precedent to commencing litigation”], lv denied 17 N.Y.3d 715, 2011 WL 5526533 [2011];  Windjammer Homes v. Lieberman, 278 A.D.2d 411, 411–412, 717 N.Y.S.2d 362 [2d Dept. 2000] [“As the breach of contract cause of action must be dismissed because of [plaintiff's] failure to substantially perform, [plaintiff's] cause of action to foreclose its mechanic's lien must also be dismissed”]).

We have considered plaintiff's remaining arguments and find them unavailing.