American Curtainwall, Inc.v.NTD Construction Corp.

Appellate Division of the Supreme Court of New York, First DepartmentApr 26, 2011
83 A.D.3d 597 (N.Y. App. Div. 2011)
83 A.D.3d 597921 N.Y.S.2d 2502011 N.Y. Slip Op. 3303

No. 4910.

April 26, 2011.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered on or about March 10, 2010, which, inter alia, granted defendants NTD Construction Corp.'s and MUS23, LLC's motion to dismiss the second and third causes of action as against them, unanimously affirmed, with costs.

Charles A. Singer, Great Neck, for appellant.

Mazur, Carp Rubin, P.C., New York (Brian G. Lustbader of counsel), for respondents.

Before: Tom, J.P., Andrias, Friedman, Abdus-Salaam and Román, JJ.

The documentary evidence annexed to the complaint contradicts the allegations in the complaint underlying the second cause of action, which alleges breach of contract ( see Wilson v Hochberg, 245 AD2d 116). Defendant NTD was justified in terminating its contracts with plaintiff based on plaintiffs failure to pay its subcontractor, defendant Midwest Curtainwall. By refusing to pay Midwest after NTD offered to reverse the termination of the contracts if it did, plaintiff effectively waived the 15-day cure period by demonstrating that it would have similarly rejected a written notice to cure.

The third cause of action, which seeks recovery in quantum meruit, is precluded by the valid and enforceable written contracts governing the subject matter in dispute ( Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388).

We have considered plaintiffs remaining arguments and find them unavailing.