Silverite Construction Co. v. Facilities Development Corp.

Mahoney, P. J. Appeal from an order of the Supreme Court (Hughes, J.), entered September 20, 1990 in Albany County, which denied plaintiffs motion for summary judgment, inter alia, dismissing defendant’s third affirmative defense. Plaintiff and defendant contracted to have the former construct the Dutchess County Jail and Sheriffs Department project in the City of Poughkeepsie. Contractual disputes arose between the parties and plaintiff commenced this action claiming defendant’s breach of their contract. Defendant submitted an answer which included the affirmative defense that it had been released from all contractual claims because of plaintiffs failure to timely file a notice of claim after defendant mailed the final payment check. Plaintiff subsequently moved for, inter alia, summary judgment dismissing the third affirmative defense, alleging that no final payment by defendant had been made. Supreme Court denied the motion and this appeal by plaintiff followed. We affirm. The sole issue herein is the existence of factual questions regarding whether plaintiff received sufficient notice that payment tendered by defendant constituted final payment due under the construction contract such as to effectively release defendant from any claim by plaintiff made thereunder (see, Brandt Corp. v City of New York, 14 NY2d 217; Buffalo Elec. Co. v State of New York, 14 NY2d 453). The record demonstrates that plaintiff twice requested "final payment” on the contract in the amount of $123,256.17. Defendant thereafter sent plaintiff a check for $48,256.17, which plaintiff promptly deposited. The record also demonstrates that plaintiff sought and received the full remainder of securities posted for the project. In support of its motion, plaintiff argued that it first learned that defendant considered the $48,256.17 to be final upon defendant’s asserting same in its answer to this lawsuit. In opposition, defendant submitted the affidavit of one of its employees stating that it notified plaintiff that $75,000 of its request for final payment was being deducted as liquidated damages resulting in what defendant now claims was a final payment of $48,256.17. In our view, defendant has raised sufficient questions of fact to defeat plaintiffs motion (see, Zuckerman v City of New York, 49 NY2d 557). We find that issues have been raised as to whether [923] the circumstances as presented in the record demonstrate that plaintiff was aware that the check for $48,256.17 might be a final payment (cf., Dalrymple Gravel & Contr. Co. v State of New York, 23 AD2d 418, 420, affd 19 NY2d 644), particularly in light of defendant’s claim that it notified plaintiff of its deduction of $75,000 from plaintiff’s final payment request of $123,256.17. Order affirmed, without costs. Mahoney, P. J., Casey, Levine, Mercure and Harvey, JJ., concur.