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Schiavone Construction Co., Inc., Etc v. the City of New York

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


May 2, 2013

SCHIAVONE CONSTRUCTION CO., INC., ETC.,
PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, ETC., DEFENDANT-RESPONDENT.

Schiavone Constr. Co., Inc. v City of New York

Decided on May 2, 2013

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.

Mazzarelli, J.P., Andrias, Saxe, Gische, JJ.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered January 10, 2012, which denied plaintiffs' motion to amend the statutory notice of claim and the complaint, and granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiffs' orginal notice of claim failed to comply with the strict notice provisions of the parties' contract; thus, plaintiffs waived their claim under the contract (see A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 31-32 [1998]). Plaintiffs do not assert that defendant "frustrated or prevented the occurrence of the condition [precedent]" to their suit (see id. at 31 [internal quotation marks omitted]). Moreover, no fewer than three clauses in the contract alert the parties to the importance of compliance with all notice procedures; allowing plaintiffs to ignore those procedures would be to contravene long-standing black-letter law that a contract should not be read to "render any portion meaningless" and should be "so interpreted as to give effect to its general purpose" (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324-325 [2007] [internal quotation marks omitted]).

None of the cases cited by plaintiffs support their contention that they should be allowed at this stage, i.e. after the commencement of litigation, to amend their notice of claim to state damages of nearly four times the amount stated in their original notice.

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

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

ENTERED: MAY 2, 2013

CLERK

20130502

© 1992-2013 VersusLaw Inc.



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