         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
58
CA 12-01466
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, WHALEN, AND MARTOCHE, JJ.


ADONIS CONSTRUCTION, LLC, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BATTLE CONSTRUCTION, INC., DEFENDANT-APPELLANT.


GATES & ADAMS, P.C., ROCHESTER (RICHARD T. BELL, JR., OF COUNSEL), FOR
DEFENDANT-APPELLANT.

WOODS OVIATT GILMAN LLP, ROCHESTER (CHRISTIAN N. VALENTINO OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered April 25, 2012. The order, insofar as
appealed from, denied defendant’s motion for partial summary judgment.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion is granted
and the second and third causes of action are dismissed.

     Memorandum: Defendant appeals from that part of an order denying
its motion seeking partial summary judgment dismissing the second and
third causes of action, alleging unjust enrichment and quantum meruit,
respectively. In those causes of action, plaintiff alleges that it is
entitled to compensation for extra work performed outside of the scope
of its subcontract with defendant, the prime contractor, for the
performance of demolition work. The record supports plaintiff’s
contention that defendant’s superintendent directed it to remove
certain walls that were not included in the plans for removal. It is
undisputed that the error was discovered at a site meeting several
weeks after the walls were removed and that plaintiff was not aware at
the time they were removed that the plans showed that those walls were
to be left intact. Approximately six weeks after it learned that the
walls were removed in error, and following defendant’s notice to
plaintiff that it would back-charge plaintiff for the cost of
replacing the walls, as well as other items, plaintiff submitted a
claim to defendant for payment for removing the walls. In that claim,
plaintiff also sought payment for extra work related to a concrete
floor and the removal of light fixtures.

     With respect to the work related to the concrete floor and the
light fixtures, we conclude that defendant established its entitlement
to judgment dismissing the second and third causes of action insofar
as they relate to those claims. The subcontract provided that
                                 -2-                            58
                                                         CA 12-01466

plaintiff was bound by the terms of the prime contract, which required
approval of extra work before it was commenced “but in no event any
later than three days from the event giving rise to the claim.”
Defendant met its initial burden with respect to those claims, and
plaintiff failed to address those claims in opposition to the motion
(see generally Zuckerman v City of New York, 49 NY2d 557, 562).

     We further conclude that defendant is entitled to judgment
dismissing the claims in the second and third causes of action insofar
as they relate to the removal of the walls. We therefore reverse the
order insofar as appealed from and dismiss those causes of action in
their entirety. The subcontract also provided that the “Subcontrator
shall, within five days of receiving a direction or encountering a
condition it regards as a change, alteration or extra work, submit to
Contractor a written cost or credit proposal; otherwise Subcontractor
shall be bound by such increase or credit as Contractor is able to
obtain from Owner. Subcontractor waives any claim against Contractor
for compensation or equitable adjustment for any claims, changes or
extra work except to the extent the same is allowed and paid to
Contractor by the Owner.” Where, as here, the “ ‘parties set down
their agreement in a clear, complete document, their writing . . .
should be enforced according to its terms’ ” (Vermont Teddy Bear Co. v
538 Madison Realty Co., 1 NY3d 470, 475). Inasmuch as the subcontract
governs demolition work and requires strict compliance with the notice
provision, compliance with that provision is a condition precedent to
recovery in an action seeking compensation for extra work (see A.H.A.
Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 30-31, rearg
denied 92 NY2d 920; Rifenburg Constr., Inc. v State of New York, 90
AD3d 1498, 1498-1499). We conclude that defendant established as a
matter of law that plaintiff was obligated to seek compensation for
the extra work pursuant to the terms of the contract when it learned
that the removal of the walls constituted extra work and that
plaintiff failed to do so in a timely manner (see generally Zuckerman,
49 NY2d at 561). We further conclude that plaintiff failed to raise
an issue of fact whether the removal of the walls was outside the
scope of the subcontract inasmuch as the terms of the subcontract
“clearly cover[] the dispute between the parties” (Clark-Fitzpatrick,
Inc. v Long Is. R.R. Co., 70 NY2d 382, 389; cf. Tom Greenauer Dev.,
Inc. v Burke Bros. Constr., Inc., 74 AD3d 1747, 1748), nor did
plaintiff raise an issue of fact whether it performed the extra work
with the implied or express promise that it would be paid for it over
and above the subcontract amount (cf. Pulver Roofing Co., Inc. v SBLM
Architects, P.C., 65 AD3d 826, 827).




Entered:   February 8, 2013                     Frances E. Cafarell
                                                Clerk of the Court
