James H. Merritt Plumbing Corp. v. City of New York

Order, Supreme Court, New York County (Leonard N. Cohen, J.), entered July 24, 1985, which, inter alia, granted plaintiff summary judgment in the sum of $3,000 on its first cause of action, granted defendant summary judgment dismissing the third cause of action, and granted plaintiff leave to amend its complaint and add a fourth cause of action, unanimously modified, on the law, to reverse the grant of summary judgment to plaintiff on its first cause of action, and otherwise affirmed, without costs.

In this action for damages arising out of plaintiff’s performance of a construction contract with defendant City of New York, plaintiff was awarded summary judgment on its first cause of action for the "contract balance” of $3,000 with interest from October 26, 1977, based on the erroneous assumption that "defendant does not dispute [that] this sum is *991due”. Defendant’s papers in opposition pointed out that plaintiff failed to file a requisition for payment of the final balance and final verified statement of claims, which, pursuant to the terms of the contract, is a condition precedent for final payment. As such, it was error to grant plaintiff summary judgment on this claim.

We have examined the other points raised on this appeal and cross appeal and find them without merit. Concur — Sandler, J. P., Asch, Kassal, Rosenberger and Ellerin, JJ.