Summary
affirming denial of summary judgment where court found issue of fact as to whether defendant waived notice requirement where notice clause did not contain a condition precedent and did not set forth the consequences of failure to strictly comply
Summary of this case from American Mfrs. Mutual Ins. v. Payton Lane Nursing HomeOpinion
October 27, 1998
Appeal from the Supreme Court, New York County (Lewis Friedman, J.).
"Under New York law, oral directions to perform extra work, or the general course of conduct, between the parties, may modify or eliminate contract provisions requiring written authorization or notice of claims" ( United States v. Merritt-Meridian Constr. Corp., 890 F. Supp. 1213, 1220, affd in relevant part 95 F.3d 153; see also, Davis Acoustical Corp. v. National Sur. Corp., 27 A.D.2d 624; Austin v. Barber, 227 A.D.2d 826). Accordingly, we modify the IAS Court's order only to the extent of adding that the course of conduct of the parties should be a subject of the ongoing discovery in addition to whether defendant verbally ordered the alleged extra work. We decline defendant's invitation to search the record and grant it summary judgment since the notice requirement in the instant case is sufficiently distinguishable from the one in A.H.A. Gen. Constr. v. New York City Hous. Auth. ( 92 N.Y.2d 20), and since this case involves a private contract ( compare, Huff Enters. v. Triborough Bridge Tunnel Auth., 191 A.D.2d 314, 316-317, lv denied 82 N.Y.2d 655).
Concur — Milonas, J. P., Ellerin, Wallach and Tom, JJ.