Novak & Co., Inc. v. New York City Housing Authority

• Decision Date: 27 November 1984
• Citation: 105 A.D.2d 665,482 N.Y.S.2d 7
• Court: New York Supreme Court — Appellate Division
• Parties: NOVAK & CO., INC., Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant. NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Appellant, v. A.I. SMITH ELECTRICAL CONTRACTORS, INC. et al., Third-Party Defendants- Respondents.

Page 7

482 N.Y.S.2d 7

105 A.D.2d 665

NOVAK & CO., INC., Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.

NEW YORK CITY HOUSING AUTHORITY, Third-Party Plaintiff-Appellant, v. A.I. SMITH ELECTRICAL CONTRACTORS, INC. et al., Third-Party

Defendants- Respondents.

Supreme Court, Appellate Division First Department.

Nov. 27, 1984.

S.G. Rubin, New York City, for plaintiff-respondent.

A. Kohn, New York City, for defendant-appellant.

A. Kohn, New York City, for third-party plaintiff-appellant.

S.I. Levin, New York City, for third-party defendants-respondents.

Before SULLIVAN, J.P., and ROSS, CARRO, BLOOM and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County entered December 13, 1983, which, inter alia, granted the motion of third-party defendants A.I. Smith Electrical Contractors, Inc. and Aetna Insurance Company to amend their answer to assert the affirmative defense of res judicata and for summary judgment thereupon dismissing the third-party complaint, unanimously reversed, on the law, without costs or disbursements, to the extent appealed from, the third-party complaint reinstated, and the third-party defendants' motion denied.

Plaintiff Novak and third-party defendant Smith were plumbing and electrical contractors, respectively, on defendant Housing Authority's Marcus Garvey Park Village project, which was substantially completed in 1976. Smith was to supply temporary power to the other contractors at the job site. In 1976 Novak commenced this action against the Housing Authority, alleging, inter alia, that the Authority had interfered with and delayed the performance of its contract obligations by failing to provide timely elevator service, for which Novak sought damages in the sum of $125,000. In January 1980 the Housing Authority impleaded Smith and its surety, Aetna, claiming a right to indemnification under both its contract with Smith and Aetna's performance bond in the event it were held liable to Novak. Meanwhile, in 1979, Smith had commenced a separate action against the Housing Authority, alleging that the Authority had misrepresented the extent of the electrical work required of it and delayed performance of its contractual obligations, for which it sought $146,000 in damages. The Housing Authority's answer in the Smith action was stricken in 1981 for non-compliance with court orders directing it to respond to interrogatories. After an inquest, at which the Authority defaulted,...