CITNALTA CONSTRUCTION CORP v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (1999)

In an action to recover damages for breach of contract, the defendant appeals from (1) an order of the Supreme Court, Kings County (Hutcherson, J.), dated December 23, 1997, which granted the plaintiff's motion for summary judgment and denied its cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered January 20, 1998, which is in favor of the plaintiff and against it in the principal sum of $28,417.50

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a] [1] ).

The defendant New York City Health and Hospitals Corporation awarded the plaintiff construction company a contract to perform work at Kings County Hospital.   Although it is undisputed that the plaintiff fully performed the work required by the contract, the defendant withheld payment of the sum of $28,417.50 because the plaintiff was unable to obtain certain payroll reports from two of its subcontractors.   According to the defendant, payment was withheld to effectuate the requirement of Labor Law § 220-a that laborers employed in public works projects be paid the prevailing wages of their trade.   After the three-year period in which a claim for nonpayment of such prevailing wages could be made by or on behalf of a laborer employed by the plaintiffs' subcontractors (see, Labor Law § 220-b[1] ), the plaintiff filed a demand for the withheld money.   When the plaintiff's demand was denied by the New York City Comptroller, the plaintiff commenced this action.

 Contrary to the defendant's contention, under the circumstances of this case, the Supreme Court properly granted the plaintiff's motion for summary judgment.   Although Article 55 of the parties' contract required an action to be commenced within one year after “final payment”, the defendant failed to establish, as a matter of law, that the payment issued on October 27, 1994, constituted “final payment” within the meaning of the contract.   Furthermore, since the defendant withheld payment from the plaintiff to ensure that funds would be available for a potential claim by or on behalf of a laborer employed by the plaintiff's subcontractors for nonpayment of prevailing wages, and as the limitation period for the filing of such a nonpayment claim has expired, the withholding of payment is no longer necessary.

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.