Opinion
12073 Index No. 23759/14E Case No. 2020-00791
10-15-2020
Luis SAETEROS, Plaintiff, v. SEVEN UP REALTY, LLC, Defendant. Seven Up Realty, LLC, Third–Party Plaintiff–Respondent–Appellant, v. AJ Greenwich Contracting, Inc., Third–Party Defendant–Appellant–Respondent.
Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for appellant-respondent. Harfenist Kraut & Perlstein LLP, Lake Success (Steven J. Harfenist of counsel), for respondent-appellant.
Carol R. Finocchio, New York (Marie R. Hodukavich of counsel), for appellant-respondent.
Harfenist Kraut & Perlstein LLP, Lake Success (Steven J. Harfenist of counsel), for respondent-appellant.
Renwick, J.P., Gesmer, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, Bronx County (Donna Mills, J.), entered October 15, 2019, which, to the extent appealed and cross-appealed from, denied third-party defendant AJ Greenwich Contracting, Inc.'s motion for summary judgment to dismiss the third-party claims against it for contractual indemnification and breach of contract to procure insurance, and denied defendant/third-party plaintiff Seven Up Realty, LLC's cross motion for summary judgment on its third-party claim for contractual indemnification, unanimously modified, on the law, and AJ Greenwich's motion granted to the extent of dismissing the third-party claims against it for breach of contract for failure to procure insurance and for contractual indemnification insofar as based on a hold harmless agreement executed after plaintiff's accident, and otherwise affirmed, without costs.
Contrary to Seven Up Realty's contention, the estimate for certain work that was executed by the parties and invoices were not contract documents under the contract initially entered into with AJ Greenwich. However, while the contract required a change order or construction change directive signed by the owner and architect to modify the contract, "oral directions to perform extra work, or the general course of conduct between the parties, may modify or eliminate contract provisions requiring written authorization" ( Penava Mech. Corp. v. Afgo Mech. Servs., Inc., 71 A.D.3d 493, 494, 896 N.Y.S.2d 349 [1st Dept. 2010] ). Here, issues of fact exist as to whether Seven Up Realty and AJ Greenwich waived the contractual requirement that any modification to the work may only be made by change order or directive signed by the owner and architect and whether the estimate and invoices modified the scope of work under the contract to include the painting work plaintiff was performing at the time of his accident (see Miller v. Larkin, 149 A.D.3d 1240, 51 N.Y.S.3d 684 [3d Dept. 2017] ; see also Rodrigues v. N & S Bldg. Contrs., Inc., 5 N.Y.3d 427, 432–433, 805 N.Y.S.2d 299, 839 N.E.2d 357 [2005] ).
Because Seven Up Realty has abandoned its third-party claim for contractual indemnification insofar as based on a hold harmless agreement executed after plaintiff's accident and withdrawn its third-party claim for breach of contract to procure insurance, we modify accordingly.