Centennial Elevator Indus., Inc. v. N.Y.C. Hous. Auth.
| Decision Date | 04 June 2015 |
| Docket Number | 450047/13 15307A 15307 |
| Citation | 11 N.Y.S.3d 564,129 A.D.3d 449,2015 N.Y. Slip Op. 04743 |
| Parties | CENTENNIAL ELEVATOR INDUSTRIES, INC., Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent. |
| Court | New York Supreme Court — Appellate Division |
129 A.D.3d 449
11 N.Y.S.3d 564
2015 N.Y. Slip Op. 04743
CENTENNIAL ELEVATOR INDUSTRIES, INC., Plaintiff–Appellant
v.
NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
450047/13 15307A 15307
Supreme Court, Appellate Division, First Department, New York.
June 4, 2015.
Babchik & Young, LLP, White Plains (Erin M. Ferrone of counsel), for appellant.
David I. Farber, New York (Gil Nahmias of counsel), for respondent.
TOM, J.P., SWEENY, MOSKOWITZ, DeGRASSE, RICHTER, JJ.
Opinion
Judgment, Supreme Court, New York County (Joan A. Madden, J.), entered April 25, 2014, dismissing the complaint, unanimously affirmed, without costs. Appeal from underlying order, same court and Justice, entered February 4, 2014, which granted defendant's motion to dismiss the complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff and defendant NYCHA entered into a contract (the Contract) under which plaintiff was to perform elevator work at a NYCHA housing development. NYCHA directed plaintiff to store its equipment and materials at certain NYCHA-
controlled locations, which subsequently experienced multiple sewage back ups, causing damage to plaintiff's equipment and materials. Plaintiff now seeks to recover money for work it was required to perform to clean and maintain the equipment and material that got damaged by sewage back ups.
Plaintiff contends that, notwithstanding Section 24 of the Contract, under which it assumed the risk of “loss or damage to any materials or equipment” stored in any location made available by NYCHA, NYCHA is liable for damage caused by its own negligence or willful negligence. However, regardless of whether the clause effectively exculpates NYCHA, plaintiff is precluded from bringing any negligence claim because it failed to serve NYCHA with a notice of intention to commence a negligence action within 90 days after the claim arose (see Public Housing Law § 157[2] ; General Municipal...
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