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

325
CA 13-01230
PRESENT: SMITH, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


ACCADIA SITE CONTRACTING, INC.,
PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ERIE COUNTY WATER AUTHORITY,
DEFENDANT-RESPONDENT.


LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (ANDREW O. MILLER OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

DAMON MOREY LLP, BUFFALO (AMBER E. STORR OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (John A. Michalek, J.), entered April 9, 2013. The
order and judgment granted defendant’s motion for summary judgment.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: In this action for breach of contract and related
relief, plaintiff appeals from an order and judgment granting
defendant’s motion for summary judgment dismissing the complaint.
Initially, we note that plaintiff does not raise any issues concerning
the dismissal of the third cause of action and has therefore abandoned
any contentions with respect to that cause of action (see Ciesinski v
Town of Aurora, 202 AD2d 984, 984). In addition, we do not address
plaintiff’s contention, raised for the first time on appeal, that
Supreme Court erred in granting summary judgment in defendant’s favor
because defendant failed to plead the defense of failure to comply
with a condition precedent with sufficient specificity (see CPLR 3015
[a]). “An issue may not be raised for the first time on appeal . . .
where it ‘could have been obviated or cured by factual showings or
legal countersteps’ in the trial court” (Oram v Capone, 206 AD2d 839,
840, quoting Telaro v Telaro, 25 NY2d 433, 439, rearg denied 26 NY2d
751). Here, defendant could have attempted to cure that alleged
deficiency by seeking leave to amend the answer (see generally Smith v
Besanceney, 61 AD3d 1336, 1336-1337). In any event, defendant’s
failure to plead that defense in its answer with sufficient
specificity does not preclude an award of summary judgment based on
that defense. “ ‘[A] court may grant summary judgment based upon an
unpleaded defense where[, as here,] reliance upon that defense neither
surprises nor prejudices the plaintiff’ ” (Schaefer v Town of Victor,
                                 -2-                          325
                                                        CA 13-01230

77 AD3d 1346, 1347).

     Contrary to plaintiff’s further contention, the court properly
granted defendant’s motion on the ground that plaintiff failed to
satisfy a condition precedent. “[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). Here, paragraph 10.05 of the contract mandated
that plaintiff provide the project engineer with “[w]ritten notice
stating the general nature of each Claim, dispute, or other matter”
within 20 days of the event giving rise to the claim. It is well
settled that “[c]ontract clauses that ‘require the 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’ ”
(Rifenburg Constr., Inc. v State of New York, 90 AD3d 1498, 1498,
quoting A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20,
30-31, rearg denied 92 NY2d 920). 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 [relocation of the lateral lines] constituted
extra work and that plaintiff failed to do so in a timely manner”
(Adonis Constr., LLC v Battle Constr., Inc., 103 AD3d 1209, 1210).
Consequently, defendant met its burden on the motion by establishing
that plaintiff did not timely comply with the notice and reporting
requirements of the contract, and plaintiff failed to raise a triable
issue of fact in opposition (see generally Zuckerman v City of New
York, 49 NY2d 557, 562).

     Plaintiff further contends that it was excused from compliance
with the notice and reporting requirements of paragraph 10.05 based on
defendant’s breach of the contract; that such compliance was prevented
or hindered because of misconduct by defendant; and that such
compliance would have been futile. Those contentions are unavailing.
First, it is well settled that a “party’s obligation to perform under
a contract is only excused where the other party’s breach of the
contract is so substantial that it defeats the object of the parties
in making the contract” (Frank Felix Assoc., Ltd. v Austin Drugs,
Inc., 111 F3d 284, 289; see Robert Cohn Assoc., Inc. v Kosich, 63 AD3d
1388, 1389), and plaintiff failed to raise a triable issue of fact
whether defendant’s actions defeated the parties’ objectives in
entering into the contract. With respect to plaintiff’s remaining two
contentions, we conclude that “there is no evidence to support
[plaintiff]’s contention[s] that [defendant’s misconduct] frustrated
its ability to comply with the applicable notice provision or that
notice to [the engineer] would have been futile” (Matter of Brenda
DeLuca Trust [Elhannon, LLC], 108 AD3d 902, 904). We note in any
event with respect to plaintiff’s second contention that, although “it
is undisputedly the rule that one who frustrates another’s performance
cannot hold that party in breach” (Water St. Dev. Corp. v City of New
York, 220 AD2d 289, 290, lv denied 88 NY2d 809; see Young v Hunter, 6
NY 203, 207), plaintiff failed to raise a triable issue of fact
                                 -3-                          325
                                                        CA 13-01230

whether its performance with the notice and reporting requirements was
prevented or hindered by defendant’s alleged misconduct (see A.H.A.
Gen. Constr., 92 NY2d at 34; DiPizio Constr. Co., Inc. v Niagara
Frontier Transp. Auth., 107 AD3d 1565, 1566; cf. Turbo Carpentry Corp.
v Brancadoro, 21 AD3d 479, 480).




Entered:   March 28, 2014                      Frances E. Cafarell
                                               Clerk of the Court
