Delric Constr. Co. v. N.Y.C. Sch. Constr. Auth.

• Decision Date: 13 April 2022
• Docket Number: 2019–10554,Index No. 514857/18
• Citation: 204 A.D.3d 750,166 N.Y.S.3d 656
• Parties: DELRIC CONSTRUCTION CO., INC., appellant, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, etc., respondent.
• Court: New York Supreme Court — Appellate Division

204 A.D.3d 750
166 N.Y.S.3d 656

DELRIC CONSTRUCTION CO., INC., appellant,
v.
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, etc., respondent.

2019–10554
Index No. 514857/18

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

Argued—February 4, 2022
April 13, 2022

166 N.Y.S.3d 658

Welby, Brady & Greenblatt, LLP, White Plains, NY (Thomas S. Tripodianos, Michael I. Silverstein, and Geoffrey S. Pope of counsel), for appellant.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Scott Shorr, Anna W. Gottlieb, and Geoffrey Stannard of counsel), for respondent.

ROBERT J. MILLER, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings

204 A.D.3d 751

County (Katherine Levine, J.), dated August 2, 2019. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint is denied.

In July 2014, the plaintiff and the defendant entered into a contract in which the plaintiff agreed to provide labor and materials on an exterior masonry project at a school in Brooklyn. After the plaintiff began work on the project, it submitted a document entitled "Request For Information" to the defendant in which it stated that it was "being asked to go above and beyond" the scope of work provided for in the contract. Specifically, the plaintiff stated that the masonry inspector on the project was "requiring a complete plaster coat prior to [the] installation of brick," while the contract "merely [spoke] to filling the collar joint"—the vertical longitudinal space between walls of masonry, or between a masonry wall and a backup system—"with mortar." The defendant responded that "parging" was required by the contract, and thus rejected the plaintiff's position that it had been asked to perform additional work for which it was entitled to additional compensation.

The plaintiff performed the disputed work and then commenced this action against the defendant to recover damages for breach of contract. The defendant filed a pre-answer motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The Supreme Court granted the motion, and the plaintiff appeals.

"A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's allegations, thereby conclusively establishing a defense as a matter of law" ( Leader v. Steinway, Inc., 180 A.D.3d 886, 887, 119 N.Y.S.3d 516 ). To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable (see Bath & Twenty, LLC v. Federal Sav. Bank, 198 A.D.3d 855, 855–856, 156 N.Y.S.3d 316 ). "[D]ocuments reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the...