RIFENBURG CONSTRUCTION INC CLAIMANT RESPONDENT APPELLANT v. CLAIM NO 111868 (2011)

MEMORANDUM AND ORDER

Appeal and cross appeal from an order of the Court of Claims (Renee Forgensi Minarik, J.), entered June 22, 2010.   The order denied the motion of defendant for summary judgment.

It is hereby ORDERED that said cross appeal is unanimously dismissed and the order is modified on the law by granting those parts of the motion for summary judgment dismissing the third and fourth causes of action and as modified the order is affirmed without costs.

Further, the court properly denied that part of defendant's motion with respect to the seventh cause of action, seeking payment of interest pursuant to State Finance Law § 179–f on the ground that DOT's final payment under the contract was untimely.   Defendant contends that it is entitled to summary judgment dismissing that cause of action because its final payment was timely in light of claimant's delay in submitting all of the documentation necessary for that payment to be issued.   We reject that contention.   Defendant accepted the work of the project on November 24, 2003 but did not provide written notice to claimant of the missing documentation until August 3, 2005.   We conclude that the 18–month period in question is not excluded for purposes of calculating the timeliness of defendant's final payment (see 2 NYCRR 18.13).

Frances E. Cafarell

Clerk of the Court