| Federated Fire Protection Sys., Corp. v Extell W. 57th St., LLC |
| 2020 NY Slip Op 05134 |
| Decided on September 29, 2020 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: September 29, 2020
Index No. 655715/2016 Appeal No. 11872 Case No. 2019-1866
Before: Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.
v
Extell West 57th Street, LLC, et al., Defendants-Respondents.
Kaufman Dolowich & Voluck, LLP, Woodbury (Andrew L. Ricahrds of counsel), for appellant.
Quinn McCabe LLP, New York (Jonathan H. Krukas of counsel), for respondents.
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 NY2d 297, 309, 313 [1986]; compare Aurora Contrs., Inc. v West Babylon Pub. Lib., 107 AD3d 922, 923-924 [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 AD3d 530 [1st Dept 2017]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: September 29, 2020