New York Supreme and/or Appellate Courts Appellate Division, First Department
May 9, 2013
START ELEVATOR, INC.,
NEW YORK CITY HOUSING AUTHORITY,
Start El., Inc. v New York City Hous. Auth.
Decided on May 9, 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.
Gonzalez, P.J., Tom, Sweeny, Renwick, Richter, JJ.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered June 1, 2010, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff's contention that its April 28 and May 4, 2004 letters constituted a notice of claim pursuant to section 23 of the parties' contract is unavailing (see e.g. Bat-Jac Contr. v New York City Hous. Auth., 1 AD3d 128, 129 [1st Dept 2003]). The April 28 letter merely stated that plaintiff would forward an estimate for the increased cost due to the change from ceramic tiles to glazed structural brick; however, section 23(a) requires that a notice of claim state the "amount of the extra cost." Although plaintiff's May 4 letter stated the amount of the extra cost, it was "not designated as a notice of claim" (Bat-Jac, 1 AD3d at 128; see also Everest Gen. Contrs. v New York City Hous. Auth., 99 AD3d 479, 479-480 [1st Dept 2012]), and instead was a change order form requiring defendant to accept and approve the change by signing it. Defendant's signature does not appear on the May 4 letter.
Even assuming that plaintiff's letters constitute a notice of claim, the release plaintiff signed bars this action (see e.g. Northgate Elec. Corp. v Barr & Barr, Inc., 61 AD3d 467, 468 [1st Dept 2009]).
We decline to consider the argument, raised for the first time in plaintiff's appellate reply brief, that sections 8, 22, and 23 are inconsistent, creating ambiguity and indefiniteness (see e.g. Shia v McFarlane, 46 AD3d 320, 321 [1st Dept 2007]). We also decline to consider plaintiff's fact-based waiver and estoppel arguments, raised for the first time on appeal (see e.g. Mount Vernon Fire Ins. Co. v William & Georgia Corp., 194 AD2d 366, 367 [1st Dept 1993]).
We have considered plaintiff's remaining arguments and find them to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2013
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