BARSOTTI INC v. CONSOLIDATED EDISON COMPANY OF NEW YORK INC

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Supreme Court, Appellate Division, First Department, New York.

BARSOTTI'S, INC., Plaintiff-Appellant, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant-Respondent.

Decided: October 27, 1998

MILONAS, J.P., ELLERIN, WALLACH and TOM, JJ. Gary J. Mueller, for Plaintiff-Appellant. Lawrence S. Menkes, for Defendant-Respondent.

Order, Supreme Court, New York County (Lewis Friedman, J.), entered on or about July 10, 1997, which, to the extent appealed from as limited by plaintiff's brief, held that the subject contract barred plaintiff's recovery for alleged extra work that was not ordered or directed, either orally or in writing, by defendant, unanimously modified, on the law, to hold that the conduct of the parties can also evidence a waiver of the contract provisions requiring written authorization or notice of claims, and otherwise affirmed, without costs.

 “Under New York law, oral directions to perform extra work, or the general course of conduct between the parties, may modify or eliminate contract provisions requiring written authorization or notice of claims” (United States for Benefit of Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 890 F.Supp. 1213, 1220, affd. in relevant part 2d Cir., 95 F.3d 153;  see also, Davis Accoustical Corp. v. Natl. Sur. Corp., 27 A.D.2d 624, 275 N.Y.S.2d 925;  Austin v. Barber, 227 A.D.2d 826, 642 N.Y.S.2d 972).   Accordingly, we modify the IAS court's order only to the extent of adding that the course of conduct of the parties should be a subject of the ongoing discovery in addition to whether defendant verbally ordered the alleged extra work.   We decline defendant's invitation to search the record and grant it summary judgment since the notice requirement in the instant case is sufficiently distinguishable from the one in A.H.A. Gen. Constr., Inc. v. New York City Hous. Auth., 92 N.Y.2d 20, 677 N.Y.S.2d 9, 699 N.E.2d 368, and since this case involves a private contract (compare, Huff Enterprises, Inc. v. Triborough Bridge and Tunnel Auth., 191 A.D.2d 314, 316-317, 595 N.Y.S.2d 178, lv. denied 82 N.Y.2d 655, 602 N.Y.S.2d 804, 622 N.E.2d 305).

MEMORANDUM DECISION.