Arnell Construction Corporation, appellant, v. New York City School Construction Authority, respondent. (2026)

Argued—January 15, 2026

DECISION & ORDER

W/

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Chereé A. Buggs, J.), entered January 29, 2025.  The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In 2017, the plaintiff contracted with the defendant, New York City School Construction Authority, to construct a school building.  In 2023, the Department of Buildings inspected the constructed building and determined that certain ground cabling installed in compliance with the defendant's contract drawing nevertheless was not compliant with the relevant electrical codes.  The defendant issued a notice of direction, directing the plaintiff to perform work to replace that ground cabling.  The plaintiff refused to complete the work without assurances from the defendant that it would be paid additional compensation.

As such assurance was not offered, the plaintiff commenced this action alleging that the defendant breached the contract by directing the plaintiff to perform the corrective work without additional compensation.  The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint.  In an order entered January 29, 2025, the Supreme Court granted the motion.  The plaintiff appeals.

A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint is properly granted where “the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326;  see Oberlander v. Moore, 191 AD3d 1009).

Here, the defendant's documentary evidence, which consisted of the parties' contract, conclusively demonstrated a defense as a matter of law.  In particular, Article 8 of the contract unambiguously provided that if the contractor claimed that any work it had been directed to perform would constitute “extra work,” it was required to promptly comply with the defendant's direction to perform the work.  The contract further provided that the contractor's failure to promptly comply with the defendant's direction to perform the work constituted (1) “[a] conclusive and binding determination on the part of the Contractor that said ․ Work ․ does not involve Extra Work and is not contrary to the terms and provisions of the Contract” and (2) “[a] waiver by the Contractor of all claims for additional compensation, time or damages.”  Here, it is undisputed that the plaintiff was directed to perform the corrective work, despite its claim that this would constitute “extra work” requiring additional compensation, and that the plaintiff failed to comply, commencing this action instead.

Contrary to the plaintiff's contention, the Court of Appeals' decision in Kalisch–Jarcho, Inc. v. City of New York (72 N.Y.2d 727) supports the defendant's position, not the plaintiff's.  In that case, the Court decided that the contract provision at issue there, which “requir[ed] a contractor during a construction project to perform disputed work directed by the City [of New York] and postpone any claim for additional compensation until after completion of the work,” was enforceable (id. at 729).  The Court explained that such a provision will not be enforced if the disputed work “was so frivolous, so palpably and manifestly outside the contract, that there could not even be a reasonable doubt that the contractor would prevail in a breach of contract action if it refused to comply” (id. at 735).  Here, the disputed work—replacement of ground cabling to make it code-compliant—was not “preposterous” or “frivolous,” and thus, as in Kalisch–Jarcho, the provision requiring the plaintiff to promptly comply with the direction to perform the work was enforceable (id.).

Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

The parties' remaining contentions need not be reached in light of our determination.

IANNACCI, J.P., FORD, VENTURA and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court