Martin Iron & Const. Corp. v. E.W. Howell Co., Inc.

• Decision Date: 22 September 1997
• Citation: 242 A.D.2d 608,664 N.Y.S.2d 746
• Court: New York Supreme Court — Appellate Division
• Parties: , 1997 N.Y. Slip Op. 7676 MARTIN IRON & CONSTRUCTION CORP., Appellant, v. E.W. HOWELL CO., INC., et al., Respondents.

Page 746

664 N.Y.S.2d 746

242 A.D.2d 608, 1997 N.Y. Slip Op. 7676

MARTIN IRON & CONSTRUCTION CORP., Appellant, v. E.W. HOWELL CO., INC., et al., Respondents.

Supreme Court of New York, Appellate Division Second Department.

Sept. 22, 1997.

Congdon, Flaherty, O'Callaghan, Reid, Dolan, Travis & Fishlinger, Garden City (Robert F. Van Der Waag and Kelly M. Krak, of counsel), for appellant.

McDonough Marcus Cohn & Tretter, LLP, New York City (Eli S. Cohn and K. Richard Marcus, of counsel), for respondents.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated July 10, 1996, which granted the respondents' motion for partial summary judgment dismissing the first, second, third, fourth, and tenth causes of action in the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly awarded the defendants partial summary judgment dismissing the plaintiff's first, second, third, fourth, and tenth causes of action seeking additional compensation for extra work performed on the Public School No. 7 project in Elmhurst, Queens. The defendants established that the releases signed by the plaintiff barred any claims for additional work occurring prior to September 30, 1993 (see, E.M. Substructures v. City of New York, 73 A.D.2d 608, 422 N.Y.S.2d 444; Mars Assoc. v. City of New York, 70 A.D.2d 839, 418 N.Y.S.2d 27, affd. 53 N.Y.2d 627, 438 N.Y.S.2d 779, 420 N.E.2d 971). The defendants further established that the plaintiff had not received written authorizations for any additional work it allegedly performed subsequent to September 30, 1993 (see, Roy C. Knapp & Sons v. County of Putnam, 212 A.D.2d 770, 623 N.Y.S.2d 261; A.I. Smith Elec. Contrs. v. City of New York, 181 A.D.2d 542, 581 N.Y.S.2d 44). Since the contract expressly provided that extra work had to be authorized in writing, and the plaintiff has failed to offer any evidence that the defendants waived that requirement (see, Sturdy Concrete Corp. v. Nab Constr. Corp., 65 A.D.2d 262, 411 N.Y.S.2d 637; cf., Davis Accoustical Corp. v. National Sur. Corp., 27 A.D.2d 624, 275 N.Y.S.2d 925), the plaintiff may not recover for alleged extra work it claims to have performed pursuant to the contract, subsequent to September 30, 1993. Finally, to the extent that the plaintiff claims that it performed additional work subsequent to September 30, 1993, pursuant to a separate implied oral...