T. Lemme Mechanical, Inc. v. Schalmont Central School District

• Citation: 860 N.Y.S.2d 241,52 A.D.3d 1006,2008 NY Slip Op 05424
• Decision Date: 12 June 2008
• Docket Number: 503862.
• Parties: T. LEMME MECHANICAL, INC., Plaintiff, v. SCHALMONT CENTRAL SCHOOL DISTRICT, Defendant and Third-Party Plaintiff-Appellant. BAST HATFIELD, INC., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. (And Three Other Related Actions.)
• Court: New York Supreme Court Appellate Division

52 A.D.3d 1006

860 N.Y.S.2d 241

2008 NY Slip Op 05424

T. LEMME MECHANICAL, INC., Plaintiff, v. SCHALMONT CENTRAL SCHOOL DISTRICT, Defendant and Third-Party Plaintiff-Appellant.

BAST HATFIELD, INC., et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. (And Three Other Related Actions.)

503862.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided June 12, 2008.

Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered March 9, 2007 in Schenectady County, which, among other things, granted the motion of third-party defendants Bast Hatfield, Inc. and Western Surety Company to dismiss the third-party complaint against them.

Kavanagh, J Plaintiff contracted with defendant, Schalmont Central School District (hereinafter the district), to serve as the heating, ventilation and air conditioning contractor on a capital construction project involving certain schools within the district. The district also contracted with third-party defendant Bast Hatfield, Inc. to serve as the general contractor for the project, and with Kasselman Electric Company, Inc. to perform the electrical work. In February 2005, plaintiff served a notice of claim upon the district pursuant to Education Law § 3813 that it was seeking to recover damages for increased labor costs it claimed to have incurred as a result of the district's failure to properly coordinate the activities of the various subcontractors involved in the project. In April 2005, a hearing was held pursuant to Education Law § 1724 on plaintiff's claim. Shortly thereafter, plaintiff commenced this action against the district and, in February 2006, served a bill of particulars which claimed that Bast Hatfield was, in part, responsible for the delays that resulted in plaintiff's increased labor expenditures. Based on these allegations, the district, in March 2006, served a notice on Bast Hatfield claiming that it was entitled to indemnification for any damages sought by plaintiff and, thereafter, commenced a third-party action against, among others, Bast Hatfield and its surety, third-party defendant Western Surety Company (hereinafter collectively referred to as Bast Hatfield). Bast Hatfield moved pursuant to CPLR 3211 (a) (5) and (7) to dismiss the district's third-party complaint on the grounds that the district failed to comply with a provision in their contract that required the district to provide Bast Hatfield with timely notice of such a claim. Supreme Court, among other things, granted the motion and dismissed the third-party complaint against Bast Hatfield. The district now appeals.

The contract between Bast Hatfield and the district required that prior to either party initiating legal action against the other, written notice must be given by the party making the claim within 21 days of the actual occurrence, or of the time when the party should have recognized that such a condition giving rise to the claim in fact existed. Here, the district's claim against Bast Hatfield is that Bast Hatfield, as general contractor, failed to properly supervise and coordinate the activities of the subcontractors on the project. The district maintains that only when it received plaintiff's bill of particulars in February 2006 did it, for the first time, realize that plaintiff's claims against the district were partially based on Bast Hatfield's failure to properly execute its responsibilities as general contractor on the project. Shortly after it received plaintiff's bill of particulars, the district provided Bast Hatfield with written notice of this claim and did so, it contends, within the time provided in the parties' contract. In its decision on the motion to dismiss, Supreme Court identified the issues and made the factual finding that the district should have recognized that plaintiff's claim for damages implicated the district when plaintiff first commenced its action against the district in April 2005, almost one year prior to the district providing Bast Hatfield with written notice of this claim. Bast Hatfield also claims that the district should have recognized that such a claim existed as a result of disclosures made during the Education Law § 1724 hearing held in April 2005.

On a motion to dismiss made...