MOTION DATE 07-17-2013
MANUEL J. MENDEZ, Justice
The following papers, numbered 1 to 13 were read on this motion to/for summary judgment alternatively to amend the answer and extend time for discovery:
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits ...____1 - 6_____
Answering Affidavits — Exhibit ____cross motion _________ ____7-11_____
Replying Affidavits _____________________________ ____12 - 13___
Cross-Motion: Yes X No
Upon a reading of the foregoing cited papers, it is ordered that THE HOUSING AUTHORITY OF THE CITY OF NEW YORK'S motion pursuant to CPLR §3212, for summary judgment dismissing both consolidated actions is granted and the case is dismissed. The remainder of the relief sought is denied.
The Housing Authority of the City of New York (hereinafter referred to as "NYCHA") seeks an Order pursuant to CPLR §3212, granting it summary judgment dismissing both consolidated actions in their entirety without prejudice. Alternatively, NYCHA seeks an Order granting leave to serve an amended answer asserting additional affirmative defenses of judicial estoppel, collateral estoppel, judicial admission, and release; additionally extending the parties time to complete discovery and file a note of issue at least by sixty (60) days after final determination of the motion.
Plaintiff brought these two consolidated actions to recover for breach of contract. The action commenced under index number 602377/2005, is based on public contract # ST 9800009 CG 6 (hereinafter referred to as the "Harlem River Contract") entered into in 1999 (McNevin Aff., Exh. 2), for the repair of concrete and brickwork, replacing roofs and other related work at the Harlem River Houses, a public housing development located in New York, New York. On July 2, 2004, plaintiff served NYCHA with a formal notice of claim related to the Harlem River Contract. On June 30, 2005, plaintiff commenced this action against NYCHA based on the Harlem River Contract (Marchisotto Aff., Exhs. 1). On November 29, 2012, plaintiff signed a release for all but four items in the action based on the Harlem River Contract; "(1) Slab replacement instead of slab through repair [Notice of Claim No. 12]; (2) Skim-coating in apartments [Notice of Claim No. 14]; Premiums: Performance & Payment Bonds, extra work [Notice of Claim No. 231; and plaintiff's related claims for interest, costs, disbursement and fees" (Marchisotto Aff., Exh. 9).
The action commenced under index number 603609/2005, is based on public contract #GD0000057 (hereinafter referred to as the "Sheepshead Bay Contract") entered into in 2001 (Marzano Aff., Exh. 1), it is based on grounds improvement work performed at the Sheepshead Bay Houses, a public housing development located in Kings County, New York. On November 12, 2004, plaintiff served NYCHA with a notice of claim related to the Sheepshead Bay Contract. On June 30, 2005, the action based on the Sheepshead Bay Contract was commenced (Marchisotto Aff. Exhs. 4 & 5). On December 11, 2012, plaintiff signed a release for six of the items listed in the notice of claim (Marchisotto Aff., Exh. 10). The remaining items are: "(1) Remove and replace sidewalk concrete as ordered by the NYCHA Inspectors... [Notice of Claim No. 1]; (2) Remove and dispose of existing Asphalt, Concrete and other debris from the project...[Notice of Claim No. 2]; (3) Remove and replace basement walkway cheek walls...[Notice of Claim No. 3]; (4) Bond on extra amount $1, 195119.30X0.03 [Notice of Claim No. 10]; and Credit Change-Order for work not performed [Notice of Claim No. 12]" (Marchisotto Aff., Exhs. 10 & 4).
Contracts Nos. GD0000057 and ST 9800009 each include. General Conditions, Section 23, titled, "CLAIMS, " which ...