HUDSON INSURANCE COMPANY INC v. CITY OF NEW YORK (2019)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered December 19, 2016, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The court correctly granted defendant's motion because Article 56 of the parties' public works contract had an explicit six month limitations period which accrued upon defendant's issuance of a certificate of substantial completion, issued here on August 15, 2014.  Because the action was not commenced until October 23, 2015, well beyond the limitations period, it was correctly deemed untimely.

We reject plaintiff's contention that it elected to submit all of its damages for extra work and delays at the same time that it requested an extension of the project's completion, and that it had given the City notice of damages and delays by letter and at meetings throughout the project, which should have satisfied Articles 11 and 30 of the parties' contract, because the contract's notice requirements were strict and unambiguous.  It is uncontested that plaintiff did not comply therewith, and the contract provides that noncompliance constitutes a waiver, precluding the claims asserted in this lawsuit (Madison Equities, LLC v. Serbian Orthodox Cathedral of St. Sava, 144 A.D.3d 431, 39 N.Y.S.3d 779 [1st Dept. 2016];  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] ).

Plaintiff's argument that alleged representations and assurances by defendant's agents, to the effect that compliance with the contract's notice requirements would not be enforced, is unavailing, given the contract's explicit merger, estoppel and no oral modification clauses (Excel Graphics Tech., v. CFG/AGSCB 75 Ninth Ave., 1 A.D.3d 65, 69–70, 767 N.Y.S.2d 99 [1st Dept. 2003], lv dismissed 2 N.Y.3d 794, 781 N.Y.S.2d 292, 814 N.E.2d 464 [2004] ).

Plaintiff's quantum meruit cause of action was properly dismissed as it arose out of the same subject matter governed here by a valid, enforceable contract (Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ).

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