Cite as: Schindler Elevator Corp. v. NYCHA, 108729/11, NYLJ 1202584498728, at *1 (Sup., NY, Decided January 8, 2013)

Justice Doris Ling-Cohan

Decided: January 8, 2013


Plaintiff: Edward Weissman.

Defendant: New York City Housing Authority.

The following papers, numbered 1-5 were considered on this motion to dismiss:


Notice of Motion/Order to Show Cause, — Affidavits — Exhibits 1, 2

Answering Affidavits — Exhibits 3

Replying Affidavits 4

Sur-Reply 5




Upon the foregoing papers, it is ordered that this motion is decided as indicated below.

Plaintiff Schindler Elevator Corporation commenced this breach of contract action against defendant New York City Housing Authority (Housing Authority) for damages in the sum of $117,660. Plaintiff alleges that defendant Housing Authority breached the parties' contract by failing to pay for services performed despite plaintiff's demand for payment.


On May 13, 2009, defendant Housing Authority entered into contract no. 9001461 (Contract) with plaintiff to install elevator zone door locks and to perform associated capital improvements at various Housing Authority housing developments in Manhattan and Queens. According to the complaint and the disputed notice of claim, plaintiff seeks damages of $117,660.00 for additional labor for the installation of elevator zone door locks at four locations in Queens. The Housing Authority now moves to dismiss the complaint in its entirety based on documentary evidence, the action not being timely commenced, and for failure to state a cause of action, pursuant to CPLR 3211(a)(1), (a)(5), and




(a)(7) respectively, with prejudice.


The Housing Authority argues that plaintiff's complaint must be dismissed because a notice of claim was not served; and if it was served, it was not timely. The terms of the parties' Contract required plaintiff to file a notice of claim within 20 days after its claim accrued. The Contract specifically states that:

"(a) [i]f the Contractor claims…Extra Work entailing extra cost, or claims compensation for any damages sustained by reason of any act or omission of the Authority…, or for any other reason whatsoever, the Contractor shall, within twenty (20) days after such claim shall have arisen, file with the Authority written notice of intention to make a claim for such extra cost or damages…".

See Acri Affidavit, Exhibit 2, Contract, General Conditions, §23(a). As plainly stated, filing a notice of claim is "a condition precedent to…the Contractor's right to resort to any proceeding or action to recover", and failure to do so results in a "waiver by the Contractor of all claims for additional compensation or for damages". Id., §23(b).

Plaintiff claims it served a notice of claim on July 12, 2011, which is disputed. Nonetheless, even if the court accepts plaintiff's allegations that: (1) its claim accrued1 no later than November 30, 2010 (the date plaintiff received a letter from defendant Housing Authority that its claim was being denied); and (2) that it, in fact, filed a notice of claim on July 12, 20112, the notice of claim would be untimely as it was not filed within 20 days of November 30, 2010.

Moreover, it is undisputed that section 55(a) of the Contract's General Conditions sets forth a statute of limitations of one year. The Housing Authority contends that plaintiff had one year from the date of the termination of the Contract, which was June 15, 2010, to commence an action or special proceeding. Plaintiff argues that its complaint was timely filed in that this action was commenced within one year of the accrual of its claim, which it argues was November 30, 2010.




Having determined that plaintiff failed to file a timely notice of claim, this court need not address, at length, whether this action was timely filed. The statute of limitations set by law may be changed by written contract. See CPLR 201. "It is well-settled that such an agreement, which modifies the statute of limitations by specifying a shorter, but reasonable period within which to commence an action, is enforceable provided it is in writing." Brintec Corp. v. Akzo N.V., Akzo America, Inc., 171 AD2d 440 (1st Dep't 1991). Here, there is no dispute that the statute of limitations for breach of contract was shortened by written agreement. However, the Housing Authority and plaintiff differ in their interpretation of when the statute of limitations began to run.

It is well settled that the construction of an unambiguous contract is a question of law for the court to decide. The Provident Loan Society of New York v. 190 East 72nd Street Corp., 78 AD3d 501, 502 (1st Dep't 2010). See also, Maysek & Moran, Inc. v. S.G. Warburg & Co., Inc., 284 AD2d 203, 204 (1st Dep't 2001). When interpreting unambiguous contract provisions, "matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument." Chimart Assoc. v. Paul, 66 NY2d 570, 572-573 (1986). "The best evidence of what parties to a written agreement intend is what they say in their writing". Greenfield v. Philles Records, Inc., 98 NY2d 562, 569 (2002) (internal citations omitted). A writing that is clear will be enforced according to its plain meaning. Id. Here, the Contract is clear on its face.

The Contract, Section 55(a) of the General Conditions, states, in pertinent part, that:

Notwithstanding any other provisions of the Contract, no action or special proceeding shall lie or be maintained by the Contractor…against the Authority upon any claim arising out of or based upon the Contract,…unless such action or special proceeding shall be commenced within one (1) year after the date of issuance of the Certificate of Final Acceptance, regardless of the completion of items of uncompleted work set forth therein, or upon any claim based upon monies to be retained for any period after the filing of such Certificate of Final Accpetance, unless such action or special proceeding is commenced within one (1) year after such monies become due and payable under the terms of the Contract, or, if the Contract is terminated, rescinded, revoked, annulled or abandoned under the terms hereof, unless such action or special proceeding is commenced within one (1) year after the date or termination, rescission, revocation, annulment, or abandonment."

Notice of Motion, Exhibit 2 (emphasis supplied). The Housing Authority relies on this clause in which




the one (1) year runs from the time of termination; asserting that the Contract was effective for 6 months and scheduled to terminate in November 2009. By letters dated November 20, 2009 and February 22, 2010, the Housing Authority exercised its option to extend the Contract twice, each extension being three months. Thus, by its own terms, the Contract was to terminate on June 15, 2010. The Housing Authority argues that, based on the unambiguous language of the Contract, the Contract terminated on June 15, 2010, starting the one year time period to commence an action.

Plaintiff opposes the Housing Authority's contention that the Contract's termination date was June 15, 2010. In support of its opposition, plaintiff merely proffers, inter alia, a letter received from the Housing Authority, dated November 30, 2010, denying plaintiff's claim for additional compensation sought in this action. See Affirmation in Opposition, Exh. B. Plaintiff argues that its claim did not accrue until November 30, 2010, and thus, this action, which was commenced on July 28, 2011, by summons and complaint, is timely. Plaintiff argues that the project was not completed until all issues regarding payment were addressed, relying selectively on one short phrase in Section 55(a) of the Contract, while ignoring the remainder of that same sentence, and the plain language of the Contract. The language relied upon by plaintiff ["after such monies become due and payable under the terms of the Contract"] is preceded by a lengthy clause which plaintiff does not even argue was met by it, as evidenced by the facts put forth by any of the parties.

Here, the plain language of the Contract states that the statute of limitations begins to run, if the Contract is terminated, upon the termination date. See the Contract, Section 55(a) of the General Conditions. There is no dispute that the Contract terminated. The Contract specifically states that it "shall commence as of the Effective Date and shall terminate six (6) months thereafter…unless…extended pursuant to its provisions." The Contract, Article 2, §2.1. As the Housing Authority correctly argues, the Contract was extended twice and the termination date of the Contract was June 15, 2010. Accordingly, plaintiff had one year from June 15, 2010 to timely commence this action, which plaintiff failed to do. Plaintiff's claim that the Contract had not terminated because payment was pending is not




supported by the Contract provisions.

Defendant's motion to dismiss the plaintiff's complaint in this matter pursuant to CPLR 3211(a) (1), (a)(5), and (a)(7) is hereby granted as the submitted papers show that a notice of intention/claim was not filed and this matter was untimely. As the court has determined that the condition precedent was not fulfilled, and the plaintiff's complaint is untimely, it need not address the remainder of the motion.

Accordingly, it is

ORDERED that defendant's motion to dismiss is granted; and it is further

ORDERED that within 30 days of entry, defendant shall serve a copy of this decision/order upon plaintiff with notice of entry.

This constitutes the decision/order of the Court.

1. Defendant Housing Authority disputes such date and claims an earlier one, specifically June 15, 2010, the date the Contract terminated.

2. Court notes that no affidavit of service has been provided to show that it was sent.