Benjamin Electrical Engineering Works, Inc. v. A-J Contracting Co.

Order, Supreme Court, New York County (Martin Evans, J.), entered October 18, 1994, which, upon reargument, vacated a default judgment in favor of defendant and thereupon denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs. The IAS Court could properly consider plaintiffs motion to reargue and renew as one to vacate the default judgment against it pursuant to CPLR 2001, plaintiff having showed that its failure to oppose the motion for summary judgment was inadvertent and resulted in only a slight delay that caused no prejudice, and that its claims against defendant are meritorious. In particular, issues exist whether defendant, which as prime contractor, cannot be held liable for delays caused by the owner (Triangle Sheet Metal Works v Merritt & Co., 79 NY2d 801), itself was the cause of the delays alleged, and also as to the intended scope of the release on which defendant relies (cf., Hallmark Synthetics Corp. v Sumitomo Shoji, 26 AD2d 481, affd 20 NY2d 871). In addition, plaintiff may be able to recover on a theory of quasi contract since defendant maintains that plaintiff did not complete the work as required under the contract (compare, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382; see, also, Steel Stor. & El. Constr. Co. v Stock, 225 NY 173). Concur—Sullivan, J. P., Wallach, Nardelli, Williams and Mazzarelli, JJ.