Goldberg & Connolly, Rockville Centre, NY (Tara D.
McDevitt and Michael J. Rosenthal of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela
Seider Dolgow and Dona B. Morris of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A.
COHEN, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for breach of contract, the
plaintiff appeals from an order of the Supreme Court, Queens
County (Grays, J.), entered September 23, 2014, which granted
the defendant's motion pursuant to CPLR 3211(a)(1) and
(7) to dismiss the complaint.
that the order is affirmed, with costs.
plaintiff was the successful bidder on a project for the
defendant New York City School Construction Authority
(hereinafter the NYCSCA) to perform exterior masonry work on
a school building. After completing the project, the
plaintiff commenced this action against the NYCSCA to recover
damages for breach of contract. The first cause of action
sought compensation for alleged extra work, and the second
cause of action sought delay damages. The NYCSCA moved
pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint,
and the Supreme Court granted the motion. The plaintiff
considering a motion to dismiss the complaint pursuant to
CPLR 3211(a)(1) based on documentary evidence, dismissal is
warranted "only where the documentary evidence utterly
refutes plaintiff's factual allegations, conclusively
establishing a defense as a matter of law" (Goshen v
Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326;
see Sabre Real Estate Group, LLC v Ghazvini, 140
A.D.3d 724; Mawere v Landau, 130 A.D.3d 986, 987).
On a motion to dismiss a complaint pursuant to CPLR
3211(a)(7), the court must accept all facts as alleged in the
complaint to be true, accord the plaintiff the benefit of
every favorable inference, and determine only whether the
facts as alleged fit within any cognizable legal theory
(see Leon v Martinez, 84 N.Y.2d 83, 87-88; Sokol
v Leader, 74 A.D.3d 1180, 1181-1182). "Where
evidentiary material is submitted and considered on a motion
to dismiss a complaint pursuant to CPLR 3211(a)(7), ... the
question becomes whether the plaintiff has a cause of action,
not whether the plaintiff has stated one and, unless it has
been shown that a material fact as claimed by the plaintiff
to be one is not a fact at all and unless it can be said that
no significant dispute exists regarding it, dismissal should
not eventuate" (Agai v Liberty Mut. Agency
Corp., 118 A.D.3d 830, 832; see Guggenheimer v
Ginzburg, 43 N.Y.2d 268, 275; T. Mina Supply, Inc. v
Clemente Bros. Contr. Corp., 139 A.D.3d 1040, 1041).
these principles, the Supreme Court properly granted that
branch of the NYCSCA's motion which was pursuant to CPLR
3211(a)(1) to dismiss the first cause of action. The
documentary evidence submitted by the NYCSCA was the
contract, which included, inter alia, the Information for
Bidders, General Conditions, and design drawings. The design
drawings contain inconsistencies as to whether the alleged
extra work was required under the contract. Section I of the
Information for Bidders mandates that the contractor discover
and inquire about a claimed ambiguity prior to the submission
of a bid. Additionally, Section 4.01 of the General
Conditions provides that in case of any discrepancy between
any drawings, the decision of the NYCSCA shall be final.
Accordingly, the plaintiff was bound under the stated terms
of the contract by the NYCSCA's determination that the
alleged extra work was required under the contract (see
Acme Bldrs. v Facilities Dev. Corp., 51 N.Y.2d 833, 834;
Thalle Constr. Co. v City of New York, 256 A.D.2d
157, 158; Lake Constr. & Dev. Corp v City of New
York, 211 A.D.2d 514; Arnell Constr. Corp. v Board
of Educ. of City of N.Y., 193 A.D.2d 640, 641; Savin
Bros. v State of New York, 62 A.D.2d 511, 516,
affd 47 N.Y.2d 934; see also L & L Painting
Co., Inc. v Contract Dispute Resolution Bd. of the City of
N.Y., 14 N.Y.3d 827). Thus, the documentary evidence
conclusively established a defense as a matter of law as to
the first cause of action, which sought compensation for
Supreme Court also properly granted that branch of the
NYCSCA's motion which was to dismiss the second cause of
action pursuant to CPLR 3211(a)(7). Section 8.02 of the
General Conditions expressly provides that the contractor
agrees to make no claim for damages for delay, and the
exclusive remedy for delay shall be an extension of the time
for completion of the work. Accordingly, dismissal was proper
with respect to the second cause of action, which sought to
recover delay damages (see J. Petrocelli Contr., Inc. v
Morganti Group, Inc.,137 A.D.3d 1082, ...