IN RE: COMMODORE CONSTRUCTION CORP. (2018)

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered November 10, 2016, denying Commodore Construction Corp.'s petition to annul a determination of respondent Contract Dispute Resolution Board (CDRB), dated March 22, 2016, which granted respondent Department of Parks and Recreation's (DPR) motion to dismiss certain claims as time-barred, and dismissing the proceeding brought pursuant to CPLR article 78, and order, same court and Justice, entered April 20, 2017, which denied Commodore's motion for leave to amend the complaint in the plenary action, unanimously affirmed, without costs.

In the article 78 proceeding, the court correctly found that CDRB's determination that Commodore's claims are time-barred had a rational basis (see generally Matter of Beck–Nichols v. Bianco, 20 N.Y.3d 540, 559, 964 N.Y.S.2d 456, 987 N.E.2d 233 [2013] ).  The contract governing the construction project required Commodore to file a notice of dispute within 30 days after nonparty Hill International, Inc. issued a determination related to any of the contractually enumerated subjects, such as additional work, so long as the determination met certain requirements, including being clearly stated in writing.  CDRB rationally found that Hill's determinations satisfied those requirements.  However, Commodore failed to file notices of dispute within 30 days after receiving the determinations.  Any subsequent course of conduct by the parties did not toll the contractual limitations period (see e.g. Gertler v. Goodgold, 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748 [1985], citing Matter of Lubin v. Board of Educ. of City of N.Y., 60 N.Y.2d 974, 471 N.Y.S.2d 256, 459 N.E.2d 481 [1983], cert denied 469 U.S. 823, 105 S.Ct. 99, 83 L.Ed.2d 44 [1984];  Matter of Pronti v. Albany Law School of Union Univ., 301 A.D.2d 841, 754 N.Y.S.2d 68 [3d Dept. 2003], lv. denied 100 N.Y.2d 509, 766 N.Y.S.2d 163, 798 N.E.2d 347 [2003];  Matter of Cauldwest Realty Corp. v. City of New York, 160 A.D.2d 489, 491, 554 N.Y.S.2d 153 [1st Dept. 1990] ).

The court properly denied Commodore's motion for leave to amend the complaint to assert claims similar to those that had already been rejected in the article 78 proceeding (see Sanders v. Grenadier Realty, Inc., 102 A.D.3d 460, 958 N.Y.S.2d 120 [1st Dept. 2013] ).  Moreover, the motion is an improper attempt to evade the contractual requirement that such claims be raised through the contract dispute process (see Acme Supply Co., Ltd. v. City of New York, 39 A.D.3d 331, 834 N.Y.S.2d 142 [1st Dept. 2007], lv denied 12 N.Y.3d 701, 876 N.Y.S.2d 349, 904 N.E.2d 504 [2009] ).