        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1144
CA 11-00880
PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.


RIFENBURG CONSTRUCTION, INC.,
CLAIMANT-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK,
DEFENDANT-APPELLANT-RESPONDENT.
(CLAIM NO. 111868.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

FOX & KOWALEWSKI, LLP, CLIFTON PARK (LAURENCE I. FOX OF COUNSEL), FOR
CLAIMANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Court of Claims
(Renee Forgensi Minarik, J.), entered June 22, 2010. The order denied
the motion of defendant for summary judgment.

     It is hereby ORDERED that said cross appeal is unanimously
dismissed and the order is modified on the law by granting those parts
of the motion for summary judgment dismissing the third and fourth
causes of action and as modified the order is affirmed without costs.

     Memorandum: The New York State Department of Transportation
(DOT) entered into a contract with claimant for the reconstruction of
6.9 miles of Route 332 in Farmington (hereafter, project). The
project involved expanding the road from two to four lanes and
building two new bridges at a cost of over $26 million. Following
completion of the project, claimant commenced this action seeking
compensation for extra work under the terms of the contract. As
limited by its brief, defendant appeals from an order insofar as it
denied those parts of defendant’s motion for summary judgment
dismissing the first through fourth and seventh causes of action.

     With respect to the first through fourth causes of action,
defendant contends that it is entitled to judgment as a matter of law
based on the strict notice and reporting requirements contained in the
construction contract. Those contract provisions require claimant,
inter alia, to provide prompt notice to DOT of any request for payment
for “extra work” that it performs and to submit “a daily summary of
FORCE ACCOUNT WORK done on the contract.” The contract requires
“[s]trict compliance” with the notice provisions and “compliance” with
the record-keeping provisions. Contract clauses that “require the
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                                                           CA 11-00880

contractor to promptly notice and document its claims made under the
provisions of the contract governing the substantive rights and
liabilities of the parties . . . are . . . conditions precedent to
suit or recovery” (A.H.A. Gen. Constr. v New York City Hous. Auth., 92
NY2d 20, 30-31, rearg denied 92 NY2d 920; see Sicoli & Massaro v
Niagara Falls Hous. Auth., 281 AD2d 966; Tug Hill Constr. v County of
Broome, 270 AD2d 755, 756). “[A] condition precedent is ‘an act or
event, other than a lapse of time, which, unless the condition is
excused, must occur before a duty to perform a promise in the
agreement arises’ ” (MHR Capital Partners LP v Presstek, Inc., 12 NY3d
640, 645, quoting Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co.,
86 NY2d 685, 690). “Express conditions must be literally performed;
substantial performance will not suffice” (MHR Capital Partners LP, 12
NY3d at 645). “Failure to strictly comply with such provisions
generally constitutes waiver of a claim for additional compensation”
(Fahs Rolston Paving Corp. v County of Chemung, 43 AD3d 1192, 1194;
see also Bat-Jac Contr. v New York City Hous. Auth., 1 AD3d 128).

     We agree with defendant that the Court of Claims erred in denying
those parts of its motion with respect to the third and fourth causes
of action. We therefore modify the order accordingly. Those causes
of action seek compensation for extra work performed for controlling
and protecting traffic during the project and for performing survey
work, respectively. According to claimant, the extra work was
necessitated by the numerous changes made by DOT during the project.
The traffic control and survey work were fixed cost items under the
contract for which claimant was entitled to extra compensation only
where additions to the project exceeded 25% of the original bid price.
In support of its motion, defendant established that claimant did not
comply with the notice and reporting requirements of the contract, and
claimant failed to raise a triable issue of fact in opposition (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Claimant’s
assertion that the numerous changes made by DOT during the project
made it extremely difficult to calculate the extra traffic control and
survey costs does not justify claimant’s failure to comply with the
notice and reporting requirements of the contract. Those requirements
are expressly designed to alert defendant to cost over-runs at the
earliest possible time in order to allow it to take steps to avoid
such extra expenses in the interest of protecting the public fisc (see
A.H.A. Gen. Constr., 92 NY2d at 33-34).

     We further conclude, however, that the court properly denied the
motion with respect to the first and second causes of action. The
first cause of action seeks compensation for the extra costs involved
in construction of the bridges, which claimant alleges were
necessitated by design errors on the part of DOT. Defendant met its
initial burden on the motion with respect to that cause of action by
establishing that claimant breached the contract notice provisions
inasmuch as it failed to make a timely claim for additional
compensation. In opposition to the motion, however, claimant
submitted evidence demonstrating not only that DOT was aware of the
design errors but that DOT prepared documents during the project
suggesting that claimant would be compensated for the extra work in
question.
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                                                           CA 11-00880

     The second cause of action seeks compensation “for significant
changes to and under[-]runs in the quantity of work” estimated by DOT
in the project specifications. Defendant met its initial burden on
the motion with respect to that cause of action by establishing when
such under-runs occurred and that, by failing to provide timely notice
of its request for additional compensation, defendant did not satisfy
a condition precedent for such request. We conclude, however, that
claimant raised triable issues of fact whether it knew or should have
known of those under-runs given the numerous additions and deletions
to the quantity of work in the project, including the additional
construction of three-quarters of a mile of water line.

     Further, the court properly denied that part of defendant’s
motion with respect to the seventh cause of action, seeking payment of
interest pursuant to State Finance Law § 179-f on the ground that
DOT’s final payment under the contract was untimely. Defendant
contends that it is entitled to summary judgment dismissing that cause
of action because its final payment was timely in light of claimant’s
delay in submitting all of the documentation necessary for that
payment to be issued. We reject that contention. Defendant accepted
the work of the project on November 24, 2003 but did not provide
written notice to claimant of the missing documentation until August
3, 2005. We conclude that the 18-month period in question is not
excluded for purposes of calculating the timeliness of defendant’s
final payment (see 2 NYCRR 18.13).

     Finally, claimant is not aggrieved by the order denying
defendant’s motion, and thus its cross appeal must be dismissed (see
Weichert v Shea, 186 AD2d 992; see generally CPLR 5511).




Entered:   December 23, 2011                    Frances E. Cafarell
                                                Clerk of the Court
