CRENULATED COMPANY LTD v. CITY OF NEW YORK (1997)

Supreme Court, Appellate Division, First Department, New York.

The CRENULATED COMPANY, LTD., etc., Plaintiff, v. The CITY OF NEW YORK, etc., Defendant.
The CITY OF NEW YORK, Third-Party Plaintiff-Appellant, v. LEHRER McGOVERN BOVIS CONSTR. MGT. CORP., Third-Party Defendant-Respondent.

Decided: November 13, 1997

Before ELLERIN, J.P., and NARDELLI, RUBIN and MAZZARELLI, JJ.

Dona B. Morris, for third-party plaintiff-appellant. Jonathan D. Siegfried, for third-party defendant-respondent.

Order, Supreme Court, New York County (Jane Solomon, J.), entered September 30, 1996, which granted third-party defendant's motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

The motion court properly characterized the claims asserted in the main action as involving alleged defective workmanship by particular contractors and, thereupon, properly dismissed the third-party complaint. Giving the language of the parties' agreement its plain meaning (see, American Express Bank v. Uniroyal, Inc., 164 A.D.2d 275, 277, 562 N.Y.S.2d 613, lv. denied 77 N.Y.2d 807, 569 N.Y.S.2d 611, 572 N.E.2d 52), the applicable portion of section 4.13, providing that the third-party defendant “shall not be responsible for the cost of correcting defective Work performed by Contractors” is unambiguous (see, W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157, 162, 565 N.Y.S.2d 440, 566 N.E.2d 639). Mere assertion that contractual language is ambiguous is insufficient to raise an issue of fact (see, Lake Constr. & Dev. Corp. v. City of New York, 211 A.D.2d 514, 515, 621 N.Y.S.2d 337).

MEMORANDUM DECISION.

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