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Everest General Contractors v. New York City Housing Authority

New York Supreme and/or Appellate Courts Appellate Division, First Department


October 9, 2012

EVEREST GENERAL CONTRACTORS,
PLAINTIFF-APPELLANT,
v.
NEW YORK CITY HOUSING AUTHORITY,
DEFENDANT-RESPONDENT.

Everest Gen. Contrs. v New York City Hous. Auth.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 9, 2012

Tom, J.P., Mazzarelli, Catterson, Renwick, DeGrasse, JJ.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 14, 2010, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff failed to provide timely written notice of its intention to make a claim for damages arising out of defendant's delay, a condition precedent to commencing an action pursuant to section 23 of the parties' contract (see A.H.A. Gen. Constr., Inc. v New York City Hous. Auth., 92 NY2d 20, 30-31 [1998]; 4-A Gen. Contr. Corp. v New York City Hous. Auth., 28 AD3d 261 [1st Dept 2006]). Plaintiff's July 26, 2004 letter which was allegedly sent to defendant, does not satisfy the requirement of written notice. The letter was not designated as a notice of claim, gave no indication of an intent to make a claim, and was sent long before the March 2006 accrual of plaintiff's claim rather than within 20 days of the date the claim arose (see Bat-Jac Contr. v New York City Hous. Auth., 1 AD3d 128 [1st Dept 2003]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 9, 2012

CLERK

20121009

© 1992-2012 VersusLaw Inc.



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