PRIMIANO ELECTRIC CO v. HTS NY LLC SI (2019)

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered August 1, 2018, which, to the extent appealed from, granted defendants HTS–NY, LLC, HE Newport, LLC, RC Dolner, LLC and Hyatt Hotels Corporation's motion for summary judgment dismissing the first, second, third, fourth, sixth and seventh causes of action as against them and dismissing the complaint in its entirety as against Hyatt Hotels Corporation, and denied plaintiff's motion for partial summary judgment, unanimously modified, on the law, to deny defendants' motion as to the first, second, and third causes of action to the extent indicated herein and to grant plaintiff's motion as to the fifth cause of action, and otherwise affirmed, without costs.

The record demonstrates that the construction delays for which plaintiff seeks damages were not the result of actions by defendants that render unenforceable the no-damages-for-delay provision in the operative contract (see Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 309, 502 N.Y.S.2d 681, 493 N.E.2d 905 [1986];  Advanced Automatic Sprinkler Co., Inc. v. Seaboard Sur. Co., 139 A.D.3d 424, 29 N.Y.S.3d 166 [1st Dept. 2016] ).  Accordingly, the fourth cause of action, which seeks delay damages, and the first, second and third causes of action to the extent they seek delay damages were correctly dismissed.

However, the record does not demonstrate as a matter of law that all the change orders that plaintiff claims are outstanding stated costs caused by delay.  The March 2010 change order, which permitted defendants to release certain retainage monies to pay plaintiff's certified payroll prospectively, did not change the original contract's provisions concerning change orders or otherwise limit plaintiff's compensation for any future changes to the scope of work to payroll costs only.  Accordingly, the claims for money owed on post-March 2010 change orders should not be dismissed.

The March 2010 change order allowed plaintiff to engage nonparty ATech Electric Enterprises, Inc. for additional labor at a rate of 110% of ATech's payroll.  Contrary to its contentions on appeal, plaintiff would bear that cost, and, per the change order, defendants could pay ATech out of plaintiff's retainage.  However, the change order permitted defendants to pay down the retainage to ATech only in an amount equal to 110% of ATech's certified payroll.  To the extent defendants paid ATech 110% of a labor rate subsequently negotiated between them but not agreed to by plaintiff, the claims for breach of contract should not be dismissed.

Defendants failed to raise an issue of fact in opposition to plaintiff's prima facie showing of entitlement to summary judgment on its claim for change order work performed in connection with accidental water damage to finished work (see Delgado v. New York City Hous. Auth., 51 A.D.3d 570, 858 N.Y.S.2d 163 [1st Dept. 2008], lv denied 11 N.Y.3d 706, 868 N.Y.S.2d 598, 897 N.E.2d 1082 [2008] ).  The only evidence defendants submitted to controvert the value of that claim was an expert report that relied solely on the contents of an unsubmitted report by defendant Dolner's insurance carrier, which was in turn based solely upon a third-party consultant's opinion.  Moreover, the basis of the insurance carrier's reductions are irrelevant to the contract between defendants and plaintiff, and defendants' unsubstantiated claims that plaintiff was not cooperative with the insurance investigation are contradicted by the record.

There is no evidence in the record that plaintiff willfully exaggerated its mechanic's lien.  Thus, to that extent the first cause of action should not be dismissed.  The extent to which the lien is incorrect should be resolved at trial (see e.g. NDL Assoc., Inc. v. Villanova Hgts., Inc., 99 A.D.3d 450, 450, 952 N.Y.S.2d 121 [1st Dept. 2012] ).

The complaint was correctly dismissed as against Hyatt Hotels Corporation (see Horsehead Indus. v. Metallgesellschaft AG., 239 A.D.2d 171, 657 N.Y.S.2d 632 [1st Dept. 1997] ).

We do not address plaintiff's assertion that the sixth and seventh causes of action were incorrectly dismissed, because plaintiff makes no argument concerning those causes of action.