IN RE: L & L Painting Co.

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

IN RE: L & L Painting Co., Inc., Petitioner-Appellant, v. The City of New York, et al., Respondents-Respondents.


Decided: January 26, 2010

Tom, J.P., Saxe, Nardelli, Renwick, Freedman, JJ. Duane Morris LLP, New York (Charles Fastenberg of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Cheryl Payer of counsel), for the City of New York and The City of New York Department of Transportation, respondents.

Charles D. McFaul, New York, for The City of New York Contract Dispute Resolution Board, respondent.


Judgment (denominated an order), Supreme Court, New York County (Alice Schlesinger, J.), entered November 10, 2008, denying the petition to annul the determination of respondent Contract Dispute Resolution Board (CDRB), dated February 8, 2008, which denied petitioner's claim for additional compensation for work performed pursuant to a contract to repaint the Queensboro Bridge, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

The CDRB correctly found that under the contract it is petitioner's absolute obligation to protect its work against, inter alia, fire damage and to replace or repair the work in the event of such damage.   Therefore, its determination that the work performed by petitioner in the aftermath of the fire was not extra work under the contract for which petitioner was entitled to be compensated was rationally based, was not arbitrary and capricious, and was not affected by an error of law (see Matter of Weeks Mar. v. City of New York, 291 A.D.2d 277 [2002], lv denied 99 N.Y.2d 652 [2003] ).

Petitioner's contractual obligation is not affected by the issue of causation, which in any event was not within the jurisdiction of the CDRB and was not decided by the CDRB. Nor is there is evidence that the City frustrated petitioner's performance of the contract.

Petitioner's argument that General Obligations Law § 5-322.1 renders the above-cited “absolute obligation” clause unenforceable is without merit.





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