Amcc Corp. v.

• Court: New York Supreme Court — Appellate Division
• Citation: Amcc Corp. v. , 62 N.Y.S.3d 430, 154 A.D.3d 673 (N.Y. App. Div. 2017)
• Decision Date: 04 October 2017
• Docket Number: 2015-04133, Index No. 18250/12.
• Parties: AMCC CORP., appellant, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, respondent.

154 A.D.3d 673

62 N.Y.S.3d 430

AMCC CORP., appellant,

v.NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, respondent.

2015-04133, Index No. 18250/12.

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

Oct. 4, 2017.

Connell Foley LLP, New York, NY (Vincent J. Torna and Sophia Cahill of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, NY (Scott Shorr and Jonathan A. Popolow of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered February 23, 2015, as granted that branch of the defendant's motion pursuant to CPLR 3211(a) which was to dismiss so much of the first cause of action as sought to recover damages for extra work in the sum of $108,377.27 and for delay costs in the sum of $1,931,643.77 on the ground that the plaintiff failed to serve a timely notice of claim.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was to dismiss so much of the first cause of action as sought to recover damages for extra work in the sum of $108,377.27 and for delay costs in the sum of $1,931,643.77 is denied.

The plaintiff entered into a design-build contract with the defendant in February 2001 to construct a school in Queens for a base price of $32,750,000. Over the course of construction, the defendant instructed the plaintiff to complete extra work, resulting in additional costs. The plaintiff, in turn, submitted Proposed Change Orders (hereinafter PCOs) to increase the contract price by specified amounts in order to recoup those increased costs. The plaintiff submitted the PCOs at issue between October 18, 2001, and August 14, 2003. The defendant agreed to some, but not all, of those proposed increases. The plaintiff thereafter executed a certificate of substantial completion on September 6, 2003, and served a notice of claim on November 21, 2003, which itemized the claims for extra work and/or delays in an schedule attached thereto.

Between August 2004 and August 2011, the parties entered into a series of agreements extending the "time for [the plaintiff] to commence legal proceedings and/or serve notices of claim against the [defendant]." The last agreement in this series specified that, "[o]ther than the extension of time to commence an action and/or serve notices of claim and the raising of any notice of claim defenses, the parties hereto do not waive any rights or remedies that they may have under applicable laws." Critically, the agreement makes no distinction between claims that were already untimely when the notice of claim was served on November 21, 2003, and claims that were not.

The plaintiff commenced this action by summons with notice dated August 30, 2012. The plaintiff's complaint, dated March 5, 2014, asserted causes of action to recover damages for breach of contract and in quantum meruit, and sought damages in the sum of $4,838,245.57, allegedly representing the unpaid portion of the contract price plus all of its unresolved PCOs. The defendant moved pursuant to CPLR 3211(a) to dismiss specific portions of the complaint which sought to recover damages for extra work and delay costs, arguing, among other things, that certain of the plaintiff's claims were untimely because they accrued when the plaintiff submitted the disputed PCOs, all of which preceded the notice of claim by more than three months. The plaintiff opposed this branch of the motion, arguing that its claims were timely because they accrued on the date of substantial completion. The Supreme Court granted the defendant's motion in its entirety. The plaintiff appeals from so much of the order as granted that branch of the defendant's motion which was to dismiss so much of the first cause of action as sought to recover damages for extra work in the sum of $108,377.27 and for delay costs in the sum of $1,931,643.77. We reverse the order insofar as appealed from.

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp., 139 A.D.3d 1040, 1040–1041, 34 N.Y.S.3d 82 ; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Sasidharan v. Piverger, 145 A.D.3d 814, 815, 44 N.Y.S.3d 85 ). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" ( Agai v. Liberty Mut. Agency Corp., 118 A.D.3d 830, 832, 988 N.Y.S.2d 644 ; see

Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 ; Thomas v. LaSalle Bank N.A., 79 A.D.3d 1015, 1017, 913 N.Y.S.2d 742 ). Additionally, in considering a motion to dismiss a complaint pursuant to CPLR 3211(a) (1), "the documentary evidence must utterly refute the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Gould v. Decolator, 121 A.D.3d 845, 847, 994 N.Y.S.2d 368 ; see Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; T. Mina Supply, Inc. v. Clemente Bros. Contr. Corp., 139 A.D.3d at 1041, 34 N.Y.S.3d 82 ; Lucia v. Goldman, 68 A.D.3d 1064, 1065, 893 N.Y.S.2d 90 ).

Under Public Authorities Law § 1744, "[n]o action or proceeding for any cause ... relating to the design, construction, reconstruction, improvement, rehabilitation, repair, furnishing or equipping of educational facilities, shall be prosecuted or maintained against the [defendant] unless ... it shall appear by and as an allegation in the complaint or moving papers, that a detailed, written, verified notice of each claim upon which any part of such action or proceeding is founded was presented to the board [of the defendant] within three months after the accrual of such claim" ( Public Authorities Law § 1744[2] ). "The version of Public Authorities Law § 1744(2) that was in effect at the time this contract was executed, and which applies to this litigation, did not indicate when a claim for monies due under the contract accrued. However, applicable case law held that a contractor's claim accrued when its damages became ascertainable" ( Kafka Constr., Inc. v. New York City Sch. Constr. Auth., 125 A.D.3d 933, 935, 5 N.Y.S.3d 167 ; see C.S.A. Contr. Corp. v. New York City School Constr. Auth., 5 N.Y.3d 189, 192, 800 N.Y.S.2d 123, 833 N.E.2d 266 ; Bri–Den Constr. Co., Inc. v. New York City School...