Opinion
11872 Index No. 655715/2016 Case No. 2019-1866
09-29-2020
FEDERATED FIRE PROTECTION SYSTEMS, CORP., Plaintiff–Appellant, v. EXTELL WEST 57TH STREET, LLC, et al., Defendants–Respondents.
Kaufman Dolowich & Voluck, LLP, Woodbury (Andrew L. Richards of counsel), for appellant. Quinn McCabe LLP, New York (Jonathan H. Krukas of counsel), for respondents.
Kaufman Dolowich & Voluck, LLP, Woodbury (Andrew L. Richards of counsel), for appellant.
Quinn McCabe LLP, New York (Jonathan H. Krukas of counsel), for respondents.
Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered January 30, 2019, which granted defendants' motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint and denied plaintiff's cross motion for leave to amend the complaint, unanimously affirmed, without costs.
Plaintiff's allegations that defendants provided only two of the three hoists required by their contract are insufficient to support the claim that defendants breached a fundamental obligation of the contract for which plaintiff may recover delay damages despite the no-damages-for-delay clause (see Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 309, 313, 502 N.Y.S.2d 681, 493 N.E.2d 905 [1986] ; compare Aurora Contrs., Inc. v. West Babylon Pub. Lib., 107 A.D.3d 922, 923–924, 968 N.Y.S.2d 545 [2d Dept. 2013] [where contractee failed to obtain access to adjacent property allegedly necessary for contractor's work, issues of fact existed whether contractee breached fundamental contractual obligation] ).
Because the proposed second amended complaint fails to remedy the pleading defect, Supreme Court properly denied plaintiff's motion to amend (see WDF Inc. v. Trustees of Columbia Univ. in the City of N.Y., 156 A.D.3d 530, 65 N.Y.S.3d 448 [1st Dept. 2017] ).