M. C. Electric Co. v. City of New York , 47 A.D.2d 616 ( 1975 )

Order, Supreme Court, New York County, entered on or about April 17, 1974, denying defendant-appellant’s motion for summary judgment, unanimously reversed, on the law, without costs and without disbursements, and the motion is granted dismissing the amended complaint. Respondent, an electrical contractor, commenced this action to recover $25,162 for damages occasioned by delay it allegedly suffered while performing work pursuant to a contract with the city. While the contract originally contemplated completion by December, 1970, during the progress of the construction, the completion date was extended to June 3. As of July 20, 1971 the work was deemed to be in a state of substantial completion, and accepted, except for certain items of uncompleted and corrective work. Thereafter on October 5 respondent applied for and received, retroactively, an extension of the completion date from June 3 until July 20. The unfinished and corrective work was ultimately completed on April 2, 1972 and on -the day following plaintiff submitted a requisition for final payment in the amount of $2,249.95. A warrant in that amount with the words “ Pinal Paymt ” printed thereon was issued and accepted by respondent. Article 44(a) of the contract provides that acceptance of final payment constitutes a release of the city from all claims except those which are reserved in a verified statement filed with the contractor’s final requisition. This article also warns that the reservation of claims in any other manner will be ineffective, notwithstanding any oral or written statement made by an officer, agent or employee of the city. Inasmuch as respondent’s verified bill of particulars, furnished some six months earlier in order to obtain extension of the completion date, does not meet this clearly and explicitly defined procedure, respondent’s acceptance of the final payment released the city from the very liability now sought to be imposed (Busso v. City of New York, 38 A D 2d 803). Concur'— McGivern, P. J., Kupferman, Lupiano and Yesawieh, JJ.