Trataros Construction, Inc. v. New York City Housing Authority

In an action to recover payment for work performed on a public improvement project, the defendant New York City Housing Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated December 10, 2004, as granted that branch of the plaintiffs motion which was for leave to serve a second amended complaint adding a proposed 13th cause of action, and denied that branch of its cross motion which was to dismiss the 8th cause of action.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the cross motion which was to dismiss the 8th cause of action and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In May 1994 the defendant New York City Housing Authority (hereinafter the Housing Authority) awarded the plaintiff a contract to perform “structural and water intrusion repairs” at the Williamsburg Houses, a large public housing development of historic significance constructed in the 1930’s. Although the project was originally anticipated to be completed by July 5, 1999, it was not actually completed until December 2002 due to

On appeal, the Housing Authority contends that the Supreme Court erred in denying that branch of its cross motion which was pursuant to CPLR 3211 (a) (1) to dismiss the plaintiffs 8th cause of action, seeking compensation for alleged extra work consisting of welding corner window sills. We agree. A motion to dismiss a cause of action on the ground that it is barred by documentary evidence pursuant to CPLR 3211 (a) (1) may be appropriately granted “where the documentary evidence utterly refutes plaintiff’s factual allegations,” and conclusively establishes a defense to the asserted claim as a matter of law (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314 , 326 [2002]; see Leon v Martinez, 84 NY2d 83 , 88 [1994]; Sheridan v Town of Orangetown, 21 AD3d 365 [2005]; Klein v Gutman, 12 AD3d 417 [2004]). In cross-moving, inter alia, to dismiss the 8th cause of action, the Housing Authority relied upon documentary evidence consisting of the contract and contract addendums. The fabrication provisions of the contract unambiguously required the plaintiff to weld corner window sills, and this requirement was not obviated or superseded by subsequent addendums which additionally required the plaintiff to caulk the perimeter of window sills. Accordingly, the plaintiff is not entitled to recover additional compensation for the welding of corner window sills, and the Supreme Court should have dismissed the 8th cause of action (see Three Bros. Roofing Contrs. v New York City Hous. Auth., 269 AD2d 523 [2000]; Lake Constr. & Dev. Corp. v City of New York, 211 AD2d 514 [1995]).

However, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs motion which was for leave to serve a second amended complaint asserting a proposed 13th cause of action to recover damages for the increased costs it incurred due to the delay in performing its work. Leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit, and will not prejudice or surprise the opposing