Tufano Contracting Corp. v. Port of New York Authority
| Decision Date | 23 April 1962 |
| Parties | TUFANO CONTRACTING CORP. v. The PORT OF NEW YORK AUTHORITY. |
| Court | New York Supreme Court |
Max E. Greenberg, New York City (Emanuel Harris and Max E. Greenberg, New York City, for counsel), for plaintiff.
Sidney Goldstein, New York City (Richard K. Abrahams, New York City, of counsel), for defendant.
This is a motion by plaintiff for partial summary judgment on its first cause of action for $65,774.65, which sum represents the balance conceded by defendant to be due and owing for work performed pursuant to contract. Upon judgment plaintiff also seeks to sever the first cause of action without prejudice to the remaining fourteen causes of action.
In opposition to the motion, defendant asserts that:
The provision of the contract alluded to by defendant provides as follows:
'The acceptance by the Contractor, or by anyone claiming by or through him, of the Final Payment shall be and shall operate as a release to the Authority of all claims and of all liability to the Contractor for all things done or furnished in connection with this Contract and for every act and neglect of the Authority and others relating to or arising out of this contract, excepting only his claims for amounts withheld by the Authority as hereinafter provided and for interest upon the Final Payment, if this payment is improperly delayed.'
While the above-quoted release clause is valid and will be enforced where a contractor has accepted final payment (Cauldwell-Wingate Co., v. City of New York, 269 N.Y. 539, 199 N.E. 524; Nicholas v. City of New York, 293 N.Y. 704, 56 N.E.2d 587), in the case at bar, final payment was not accepted but to the contrary was refused when tendered by defendant. In the opinion of the court plaintiff did not contract away its right to sue for sums which it had earned and the release clause nowhere prescribes the time when judgment may be entered after such action is brought. Nor does the court consider judgment...
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KEC Corp. v. New York State Environmental Facilities Corp.
... ... a severance of that action from the remaining causes of action (see Tufano Contr. Corp. v. Port of New York ... Auth., 33 Misc.2d 1028, 227 ... that he has and will make no claim for damages against the Authority by reason of any act or omission to act by any other contractor or in ... concluded that these sections do not provide authority in the contracting municipality or agency to delegate to one of the prime contractors ... ...
- Tufano Contracting Corp. v. Port of New York Authority
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Tufano Contracting Corp. v. Port of New York Authority
...and (b) from the judgment of said court entered May 9, 1962, pursuant to said order (Rules of Civil Practice, rule 114; see 33 Misc.2d 1028, 227 N.Y.S.2d 707). Judgment and order affirmed with one bill of ten dollars costs and In our opinion plaintiff's acceptance of payment, pursuant to th......