CONTRACTING CORP v. DEPARTMENT OF TRANSPORTATION (2026)

DECISION & ORDER

In a claim, inter alia, to recover damages for breach of contract, the claimant appeals from an order of the Court of Claims (Francis T. Collins, J.), dated June 21, 2021.  The order granted the defendant's motion for summary judgment dismissing the claim.

ORDERED that the order is affirmed, with costs.

In June 2019, the claimant filed this claim against the State of New York–Department of Transportation (hereinafter the DOT) to recover damages for additional compensation the claimant contends it was owed in connection with a contract it entered into with the DOT to reconstruct part of Route 25A in Nassau County.  The claimant alleged, among other things, that it was entitled to additional compensation relating to a nearly two-year delay in completion of the project, contending, inter alia, that the delays arose out of weather conditions caused by Superstorm Sandy, geologic conditions, and purported defects in surveys performed by the DOT. The DOT moved for summary judgment dismissing the claim.  The claimant opposed the motion.  In an order dated June 21, 2021, the Court of Claims granted the DOT's motion.  The claimant appeals.

“Where a construction contract contains a condition precedent-type notice provision setting forth the consequences of a failure to strictly comply, strict compliance will be required” (Schindler El. Corp. v. Tully Constr. Co., Inc., 139 A.D.3d 930, 931, 30 N.Y.S.3d 707 [internal quotation marks omitted];  see A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d 20, 30–31, 677 N.Y.S.2d 9, 699 N.E.2d 368).  “Express conditions precedent must be literally performed;  substantial performance will not suffice, and the failure to strictly comply with such provisions generally constitutes waiver of a claim” (Schindler El. Corp. v. Tully Constr. Co., Inc., 139 A.D.3d at 931, 30 N.Y.S.3d 707 [alteration and internal quotation marks omitted] ).

“The general rule is that notice and reporting requirements in public construction contracts must be literally performed where, as here, they are designated as conditions precedent, and failure to comply warrants summary judgment dismissing the claim” (Tutor Perini Corp. v. State of New York, 209 A.D.3d 692, 696–697, 176 N.Y.S.3d 285 [citation and internal quotation marks omitted];  see A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d at 30–31, 677 N.Y.S.2d 9, 699 N.E.2d 368).

Here, the DOT established its prima facie entitlement to judgment as a matter of law dismissing the claim by submitting the parties' written agreement which provided, in relevant part, that, as a condition precedent to any dispute about payments, the claimant was required to provide the DOT with written notice of any “time related disputes” and that the DOT would have “no liability ․ for any damages which accrued more than ten (10) work days prior to the filing of written notice.”  The agreement also provided, among other things, that the claimant's failure to comply with certain record-keeping requirements in connection with the dispute constituted a waiver by the claimant of any such claim.  The DOT also submitted evidence to show that the claimant's notice of its claim for additional compensation was untimely as it was provided approximately two months post-completion of the project and that the claimant failed to comply with the record-keeping requirements of the parties' written agreement.  In opposition, the claimant failed to raise a triable issue of fact (see A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d at 30, 677 N.Y.S.2d 9, 699 N.E.2d 368;  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The claimant's remaining contentions are without merit.

Accordingly, the Court of Claims properly granted the DOT's motion for summary judgment dismissing the claim (see A.H.A. Gen. Constr. v. New York City Hous. Auth., 92 N.Y.2d at 30, 677 N.Y.S.2d 9, 699 N.E.2d 368;  Mazur Bros. Realty, LLC v. State of New York, 59 A.D.3d 401, 402, 873 N.Y.S.2d 326).

DUFFY, J.P., WOOTEN, TAYLOR and HOM, JJ., concur.