J.J. Juliano Construction, Inc. v. Burgio & Campofelice, Inc.

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in allowing Burgio & Campofelice, Inc. (defendant), the general contractor, to charge plaintiff subcontractor for the amounts defendant expended to correct a defect in the concrete floor of the auditorium that was poured by plaintiff. The subcontract provides that the general contractor must provide notice to the subcontractor that the work is defective as a condition precedent to making the subcontractor liable for damages caused by its defective work. Defendant admitted that it did not provide the requisite notice (see, Sturdy Concrete Corp. v NAB Constr. Corp., 65 AD2d 262, 273-274, appeal dismissed 46 NY2d 938). We therefore modify the judgment in favor of defendant by subtracting the amount of $6,259.45 ($5,443 plus 15% allowed to defendant for overhead and profit) together with interest thereon and otherwise affirm. We have examined the remaining arguments advanced by plaintiff and conclude that they lack merit. (Appeal from Judgment of Supreme Court, Erie County, Roberts, J.H.O. — Damages.) Present — Pigott, Jr., P. J., Green, Hayes and Hurlbutt, JJ.