LANMARK GROUP INC v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY (2023)

Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered on or about August 18, 2021, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established its prima facie entitlement to summary judgment by furnishing competent evidence that the delays plaintiff faced were contemplated within the parties’ 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]).  Plaintiff asserted in its complaint that it incurred damages because of uncontemplated delays that arose when it was obliged to pay tradespeople for eight hours of work even though they worked only five hours per day.  However, defendant's bid solicitation letter stated that the winning bidder would agree to the project labor agreement (the PLA) between defendant and the Building and Construction Trades Council of Greater New York and Vicinity;  the letter provided a link to the PLA, which stated that each worker needed to be paid for eight hours each day even if the worker actually worked fewer hours.  In addition, one of the exhibits to the contract required all weekday work to be performed after 3:00 p.m. from Monday to Friday.  Plaintiff also warranted when it entered into the contract that it was “familiar with all federal, state, and other laws, ordinances, orders, rules, codes and regulations affecting the Work required under the Contract,” including relevant sections of the New York City building code allowing weekend work and work after 6:00 p.m. on weekdays only through an authorization from the New York City Department of Buildings, which the Department might or might not decide to issue.  Together, these facts make clear that plaintiff was aware of at least the possibility that tradespeople would be able to work as little as three hours per day (see Bovis Lend Lease (LMB), Inc. v. Lower Manhattan Dev. Corp., 108 A.D.3d 135, 147, 966 N.Y.S.2d 51 [1st Dept. 2013]).

Defendant also furnished sufficient evidence showing that it did not breach a fundamental obligation of the contract — namely, that tradespeople be able to work an eight-hour shift.  Contrary to plaintiff's position that the PLA required that tradespeople be permitted to work a full eight-hour shift, the PLA required only that they be paid for an eight-hour shift (see Corinno Civetta Constr. Corp., 67 N.Y.2d at 309, 502 N.Y.S.2d 681, 493 N.E.2d 905).  Moreover, although the mandate to follow the PLA's eight-hour pay requirement was in some sense imposed by defendant, plaintiff agreed to this requirement in entering into the contract.

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