GIBRALTAR CONTRACTING INC v. TULLY CONSTRUCTION INC (2026)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about June 24, 2025, which, to the extent appealed from, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant's motion for summary judgment dismissing the complaint as untimely was properly denied.  Under the terms of the parties' agreement, “[a]pproval and payment by Owner is a condition precedent to [defendant contractor's] obligation to pay [plaintiff subcontractor].”  Further, as relevant here, the agreement set forth that to trigger the contractual six-month limitation period for monetary claims, the owner had to give “final acceptance” of the work, and any monetary damages that were sought had become “due and payable hereunder.”  Although this Court previously determined that the six-month limitations period was not unreasonably short on its face (see Gibraltar Contr., Inc. v. Tully Constr.  Co. Inc., 234 AD3d 436, 437 [1st Dept 2025] ), it is undisputed that defendant failed to establish if and when it had been paid by the owner to trigger the shortened contractual limitation period, and, in turn, failed to demonstrate that such limitation period is “reasonable as applied” (see Turner Constr.  Co. v. Nastasi & Assoc., Inc., 192 AD3d 103, 107 [1st Dept 2022] ).

We have considered defendant's remaining contentions and find them unavailing.