Mariacher Contracting Co., Inc. v. Kirst Const., Inc.

• Decision Date: 18 November 1992
• Citation: 590 N.Y.S.2d 613,187 A.D.2d 986
• Parties: MARIACHER CONTRACTING COMPANY, INC., Respondent, v. KIRST CONSTRUCTION, INC., Respondent, and Niagara Frontier Transit Authority, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 613

590 N.Y.S.2d 613

187 A.D.2d 986

MARIACHER CONTRACTING COMPANY, INC., Respondent, v. KIRST CONSTRUCTION, INC., Respondent and Niagara Frontier Transit Authority, Appellant.

Supreme Court, Appellate Division Fourth Department.

Nov. 18, 1992.

Lawrence M. Meckler by David Coffey, Buffalo, for appellant, Niagara Frontier Transit Authority.

Roy R. Cesar, Buffalo, for respondent, Mariacher Contracting Co., Inc.

Mattar & D'Agostino by Joseph Reina, Buffalo, for respondent, Kirst Const., Inc.

Before DENMAN, P.J., and PINE, LAWTON, BOEHM and DAVIS, JJ.

MEMORANDUM:

In July 1985, plaintiff Mariacher Contracting Company, Inc., subcontracted with defendant Kirst Construction, Inc., the general contractor, for the site work at the Buffalo Small Boat Harbor, owned by defendant Niagara Frontier Transit Authority (NFTA). On December 2, 1985, a severe storm hit the Buffalo area causing damage to the work that had been performed under the subcontract. Plaintiff asserts that because of the storm it performed additional work on the project, under protest, and that defendants failed and refused to compensate it for that work. After the project was completed, plaintiff commenced this action sounding in contract and quasi contract to recover the reasonable costs of its additional work on the project. After trial, the Judicial Hearing Officer concluded that plaintiff was entitled to recover in quasi contract against NFTA for that additional work in the amount of $105,129.25.

Unless an owner has undertaken liability toward a subcontractor under the terms of the general contract, the subcontractor, because it is not in privity with the owner, may not assert a cause of action that is contractual in nature against it (see, Martirano Constr. Corp. v. Briar Contr. Corp., 104 A.D.2d 1028, 1030, 481 N.Y.S.2d 105; see also, Port Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652, 389 N.Y.S.2d 327, 357 N.E.2d 983). Rather, the subcontractor must bring all contract claims against the general contractor, with whom it is in privity (see, Underhill Constr. Co. v. New York Tel. Co., 56 A.D.2d 760, 391 N.Y.S.2d 1000, affd. 44 N.Y.2d 666, 405 N.Y.S.2d 40, 376 N.E.2d 201).

At trial, plaintiff admitted that it did not have a contract with NFTA, that NFTA never responded to its demands for payment for its additional work, and that, if NFTA wanted additional work, it requested its contractor, Kirst, to do the work; Kirst would in turn request that plaintiff proceed. The record also establishes that plaintiff's requests for payment for its additional work were made to Kirst. Additionally, the general contract and subcontract contained provisions for making claims for additional or extra work performed and for resolving disputes concerning that work, and plaintiff's president testified that it complied with the terms of those contracts in requesting compensation from Kirst for its additional storm damage repair work. Given those circumstances, plaintiff is precluded from recovering against NFTA on its contractual claims (see, Martirano Constr....