FILED: NEW YORK COUNTY CLERK 08/05/ :48 PM INDEX NO /2013 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/05/2016

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1 FILED: NEW YORK COUNTY CLERK 08/05/ :48 PM INDEX NO /2013 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/05/ of 22 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DANCO ELECTRICAL CONTRACTORS, INC., - against - Plaintiff, Index No (IAS Part 3 - Justice Bransten) DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Defendant. DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT HOLLAND & KNIGHT LLP Attorneys for Defendant 31 West 52 nd Street New York, New York (212)

2 Table of Contents TABLE OF AUTHORITIES Page PRELIMINARY STATEMENT 1 FACTS 2 A. THE PROJECT AND THE PARTIES 2 B. THE CONTRACT 3 C. THE CHANGE ORDER PROCESS 5 ARGUMENT 6 I. ARTICLE 11 OF THE GENERAL CONDITIONS IMPOSES AN EXPRESS CONDITION PRECEDENT TO MAINTAINING A CLAIM, AND DANCO'S FAILURE TO COMPLY BARS RECOVERY ON MOST OF THE CHANGE ORDER PROPOSALS IN DANCO'S SECOND CAUSE OF ACTION, AND DANCO'S ENTIRE THIRD CAUSE OF ACTION 7 II. III. A. Forced COPs 9 B. Rejected COPS 10 C. COPs For Work Performed Without a Written Notice to Proceed and/or Untimely Under General Conditions 11.01(A)(2) 11 THERE IS NO DISPUTED ISSUE OF FACT CONCERNING FOUR OF THE COPs IN DANCO'S SECOND CAUSE OF ACTION, UPON WHICH DANCO AND DASNY AGREE ON THE VALUE 13 THE QUASI-CONTRACT CLAIMS ALLEGED IN DANCO'S FOURTH, FIFTH AND SIXTH CAUSES OF ACTION CANNOT BE MAINTAINED BECAUSE THE PARTIES HAVE AN ENFORCEABLE CONTRACT 14 A. Danco's Fourth (Quantum Meruit) and Sixth (Unjust Enrichment) Causes of Action May Not be Maintained 14 B. Danco's Fifth Cause of Action (Account Stated) May Not Be Maintained 16 CONCLUSION 18 Hi 2 of 22

3 TABLE OF AUTHORITIES Page(s) Cases A.H.A. General Const., Inc. v. New York City Housing Auth., 92N.Y.2d20(1998) 7 A.I. Smith Electrical Contractors, Inc. v. City of New York, 181 A.D.2d 542 (1st Dept. 1992) 9, 13 Alvarez v. Prospect Hospital, 68N.Y.2d320(1986) 6 American Curtainwall, Inc. v. NTD Construction Corp., 83 A.D.3d 597 (2d Dept. 2011) 15 Bat-Jac Contracting, Inc. v. New York City Housing Authority, 1 A.D.3d 128 (1st Dept. 2003) 8 Capelin Assocs. v. Globe Mfg. Corp., 34N.Y.2d338(1974) 7 Clark-Fitzpatrick, Inc. v. Long Island Rail Road Co., 70N.Y.2d382(1987) 14,16 Dart Mechanical Corp. v. City of New York, 68 A.D.3d 664 (1st Dept. 2009) 8 Enviroclean Services, LLC v. CEM, Inc., 12 A.D.3d 1042 (4th Dept. 2004) 17 Fender v. Prescott, 101 A.D.2d 418 (1st Dept. 1984), affd, 64 N.Y.2d 1077 (1985) 7 Gordon v. Credno, 102 A.D.3d 584 (1st Dept. 2013) 15 Gurney, Becker & Bourne, Inc. v. Benderson Dev. Co., 47N.Y.2d995(1979) 17 Martin H. BaumanAssocs., Inc. v. H & M International Transport, Inc., 171 A.D.2d 479 (1st Dept. 1991) 17 Mezzacappa Bros., Inc. v. City of New York, 29 A.D.3d 494 (1st Dept. 2006) 8, 10, 11 in 3 of 22

4 MHR Capital Partners v. Presstek, Inc., 12N.Y.3d640(2009) g Morelli Masons, Inc. v. Peter Scalamandre & Sons, 294A.D.2d 113 (1st Dept. 2002) 9 Mullany v. Munchkin Enterprises, Ltd., 69 A.D.3d 1271 (3d Dept. 2010) 7 Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon & Co., 86N.Y.2d685(1995) 7,8 Pettinelli Electric Co. v. Bd. of Ed. of the City of New York, 226 A.D.2d 176 (1st Dept. 1996) 9 Schindler Elevator Corp. v. Tully Const. Co., Inc., 139 A.D.3d 930 (2d Dept. 2016) 10, 11 Scott v. Fields, 92 A.D.3d 666 (2d Dept. 2012) 15 Simplex Grinnell v. Ultimate Realty, LLC, 38 A.D.3d 600 (2d Dept. 2007) 17 Sound Beyond Electrical Corp. v. City of New York, 100 A.D.3d 412 (1st Dept. 2012) 15 Tadco Construction Corp. v. Dormitory Auth. of the State of New York, 93 A.D.3d 619 (1st Dept. 2012) 15 Tougher Industries, Inc. v. Dormitory Auth. of the State of New York, 130 A.D.3d 1393 (3d Dept. 2015) 8 Travelers Cas. and Sur. Co. v. Dormitory Auth. of the State of New York, 735 F.Supp.2d42 (S.D.N.Y. 2010) 8, 11, 13 Zuckerman v. City of New York, 49N.Y.2d557(1980) 6,7 Statutes CPLR 3212(b) 6 General Municipal Law N.Y. Pub. Auth. Law 1675, et seq 2, 3 IV 4 of 22

5 PRELIMINARY STATEMENT Defendant Dormitory Authority of the State of New York ("DASNY") submits this memorandum of law in support of its motion for summary judgment pursuant to CPLR 3212, which seeks: (i) summary judgment as to thirty-nine of the forty change order proposals at issue in the second cause of action set forth in plaintiff Danco Electrical Contractors, Inc.'s ("Danco") complaint, and (ii) summary judgment dismissing Danco's third, fourth, fifth and sixth causes of action in their entirety. This action is a dispute over construction change orders on a public works project for which Danco was hired by DASNY to be the prime electrical contractor. Danco's second cause of action alleges that DASNY did not approve forty change order proposals (each a "COP") for which Danco seeks payment. Danco's third cause of action alleges that Danco is entitled to additional compensation with respect to sixteen "forced" change orders (z. e., change orders that Danco refused to sign because they were approved by DASNY in an amount less than Danco requested, so DASNY issued the change order without Danco's signature). With respect to the second cause of action, Danco waived its right to claim additional compensation on thirty-five of the forty COPs at issue, because it failed to comply with express conditions precedent set forth in the parties' contract. Regarding twenty-nine of these thirty-five COPs, Danco did not comply with the contractual condition precedent of delivering a verified written statement of its claims to DASNY. Recovery on six more of these COPs is barred because the COP was for work that was not performed pursuant to a written Notice to Proceed issued by DASNY (because the work was specifically included in Danco's original scope of work), and/or the COP was submitted long after the contractually mandated time period for notifying DASNY of a claim for extra work. Of the remaining five COPs in the second cause of action: (i) three were actually approved by DASNY in the full amount requested by Danco (and 5 of 22

6 therefore are properly included in Danco's first cause of action for the contract balance); (ii) one was agreed to and signed by Danco, and its counsel stipulated that it is not in dispute (therefore also properly included in the first cause of action); and (iii) DASNY does not seek summary judgment on one COP (i.e., COP 180). Concerning Danco's third cause of action, Danco did not deliver a verified statement of its claims to DASNY for any of the sixteen COPs at issue, and therefore waived its right to claim additional compensation for that work. Danco's fourth, fifth and sixth causes of action sound in quasi-contract, and under well-established law, each of these claims fails to state a valid cause of action due to the existence of a written contract between the parties. If DASNY's motion is granted, this case will be narrowed down to a far less complex dispute concerning Danco's first cause of action claiming the contract balance. Resolution of that dispute will involve consideration of just one change order proposal (COP 180, referenced above) and a number of credit change orders (i.e., backcharges) assessed by DASNY to Danco's contract for work that Danco failed to perform. The facts relevant to DASNY's motion are set forth in the affidavit of Charles K. Bartlett, sworn to August 4, 2016 ("Bartlett Aff"), and the exhibits thereto ("Bartlett Exh."). For the reasons that follow, DASNY respectfully submits that its motion for summary judgment should be granted. FACTS A. The Project and the Parties This action concerns the construction of the West Quad Building on the campus of Brooklyn College in Brooklyn, New York (the "Project"). Bartlett Aff, If 5. DASNY, a public benefit corporation of the State of New York (see N.Y. Pub. Auth. Law 1675, et seq.). 6 of 22

7 undertook financing and construction of the Project on behalf of the City University of New York. Id. DASNY entered into a contract with Turner Construction Co. ("Turner") to serve as the Project's Construction Manager, and designated Turner as the "Owner's Representative" for the Project. Bartlett Aff., ^ 6. DASNY retained Rafael Vinoly Architects, P.C. ("RVA") as the Project architect, and designated RVA as the "Consultant" for the Project. Id., f 7. B. The Contract The Project was a public works project subject to the Wicks Law, General Municipal Law 101, which required DASNY to enter into separate direct contracts with the various trade contractors. Bartlett Aff, 8. Following a competitive bidding process, DASNY entered into a contract with Danco for the "New West Quad Electrical Work," Contract DA# (the "Contract"). Id., 19; Bartlett Exh. 1. The Contract defines DASNY as the "Owner" and "Danco" as the "Contractor." Id. The Contract incorporates the Project's "General Conditions," and requires Danco to perform its work on the Project "in strict accordance with the Contract Documents as defined in the General Conditions." Bartlett Aff, 110; Bartlett Exh. 1. Several provisions of the General Conditions are crucial to this motion. Section 8.01(A) of the General Conditions provides in relevant part that "No claims for Extra Work shall be allowed unless such Extra Work is ordered by the Owner via a written Notice to Proceed. No changes in the Work shall be made unless such Work is ordered by the Owner via a written Notice to Proceed The Owner may order the Contractor to perform the Extra Work and proceed under the Dispute Article." Bartlett Exh. 2, p. 11. Section 8.01(B) states that the value of a change order is determined by the Owner, by one of three specified methods, one of which is "[b]y estimating the fair and reasonable cost of the Extra Work." Bartlett Exh. 2, pp of 22

8 The Dispute Article of the Contract is found at Article 11 of the General Conditions. Section provides in relevant part that: A. If the Contractor claims that any Work that the Contractor has been ordered to perform will be Extra Work, or that any action or omission of the Owner is contrary to the terms and provisions of the Contract and will require the Contractor to perform Extra Work, the Contractor shall: 2. File with the Owner within fifteen (15) working days after being ordered to perform the Work claimed by the Contractor to be Extra Work or within fifteen (15) working days after commencing performance of the Work, whichever date shall be earlier, or within fifteen (15) working days after the said action or omission on the part of the Owner occurred, a written notice of the basis for the Contractor's claim, including estimated cost, and request for a determination thereof. B. No claim for Extra Work shall be allowed unless the same was done pursuant to a written order of the Owner. The Contractor's failure to comply with any or all parts of this Article shall be deemed to be: 1. a conclusive and binding determination on the part of the Contractor that said order, Work, action or omission does not involve Extra Work and is not contrary to the terms and provisions of the Contract, 2. a waiver by the Contractor of all claims for additional compensation or damages as a result of said order, Work, action or omission. Bartlett Exh. 2, pp Section 11.03(A) of the General Conditions provides in relevant part that "Any decision or determination of the Consultant, Owner or Owner's Representative shall be final, binding and conclusive on the Contractor unless the Contractor shall, within ten (10) working days after said decision, make and deliver to the Owner a written verified statement of the Contractor's contention that said decision is contrary to a provision of the Contract." Bartlett Exh. 2, p of 22

9 C. The Change Order Process The contract provisions referenced above provided the framework for change order submission and review on the Project. If DASNY directed a contractor to perform work that DASNY believed might constitute Extra Work under the Contract, DASNY would issue a Notice to Proceed ("NTP") to the contractor (on this Project, each NTP was assigned a number, which was preceded by the letters "WQ"). Bartlett Aff, If 16. If a contractor believed that certain work was Extra Work despite DASNY's opinion to the contrary, and the contractor refused to perform the work without an NTP being issued, DASNY would issue a "Disputed Work" NTP. Id. In either circumstance, the contractor was required to submit a change order proposal and follow the procedures of Articles 8 and 11 of the General Conditions to seek payment for the work in question. Id. At times during the Project, RVA issued "Bulletins" that could include a change in the plans and/or specifications for certain work, and could indicate the possibility of Extra Work to one or more contractors. Bartlett Aff, 117. Often DASNY would request pricing for this work from the contractors before issuing an NTP, in order to first assess the cost impact of the Bulletin. Id. If DASNY had received price proposals and decided to implement the Bulletin (whether as issued by the Architect or with modifications), DASNY would thereafter issue a "Proposal in Review" NTP. Id. The procedure on the Project was that change order proposals from contractors would first be reviewed by Turner, as the Owner's Representative, for an initial determination of: (a) whether the work in question was Extra Work; and (b) if the work was Extra Work, the fair and reasonable value of the work. Bartlett Aff, Tf 18. If Turner's employees concluded that work subject to a change order proposal was not Extra Work, Turner would send a letter to the contractor advising the contractor of its decision that the proposal was rejected. Id., If 19. If 5 9 of 22

10 Turner agreed that the work in question was Extra Work, but determined that the cost of the work was less than what was proposed by the contractor, Turner would send a "Negotiation Letter" to the contractor advising the contractor of the cost calculated by Turner. Id. After Turner made a determination of the value of Extra Work, a change order would be prepared for DASNY's review. Bartlett Aff, f 20. All change orders were reviewed by DASNY's Cost Control unit prior to approval. Id. DASNY or Turner would then send a copy of the change order to the contractor for signature. Id. In most instances, the contractor would sign the change order and return it to DASNY, but if the contractor refused to sign the change order as approved by DASNY (as was frequently the case with Danco), DASNY would "force" the change order by issuing it without the contractor's signature. Id. With respect to forced change orders, the contractor was obligated to comply with the procedures set forth in Article 11 of the General Conditions if it disputed the change order value approved by DASNY and desired to preserve its right to pursue a claim for payment beyond the amount approved by DASNY. Id., f 21. As described in Mr. Bartlett's affidavit, Danco consistently failed to follow the Contract's procedures for giving notice of alleged Extra Work and preserving its right to make claims for Extra Work under the Disputes Article. Accordingly, as explained below, Danco's claims are barred by the Contract, and summary judgment should be granted in DASNY's favor. ARGUMENT It is well settled that a motion for summary judgment will be granted if, upon all of the papers and proof submitted, the movant establishes its cause of action or defense sufficiently to warrant the Court's entry of judgment in its favor as a matter of law. See CPLR 3212(b); Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). The party opposing summary judgment must present admissible evidence establishing a triable issue of fact. Alvarez v of 22

11 Prospect Hospital, 68 N.Y.2d 320, 324 (1986). Mere conclusory or unsubstantiated allegations or assertions are insufficient to defeat the motion. Zuckerman, supra, 49 N.Y.2d at 562; Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342 (1974) ("Bald conclusory assertions, even if believable, are not enough [to defeat summary judgment]"); Fender v. Prescott, 101 A.D.2d 418, 425 (1 st Dept. 1984) ("The issue must be shown to be real, not feigned, since a sham or frivolous issue will not preclude summary relief), affd, 64 N.Y.2d 1077 (1985). I. Article 11 of the General Conditions Imposes an Express Condition Precedent to Maintaining a Claim, and Danco's Failure to Comply Bars Recovery on Most of the Change Order Proposals in Danco's Second Cause of Action, and Danco's Entire Third Cause of Action. "A condition precedent is 'an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises.'" Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690 (1995). "Whether a condition precedent exists under the terms of a contract is a matter of law for the court to decide." Mullany v. Munchkin Enterprises, Ltd., 69 A.D.3d 1271, 1274 (3d Dept. 2010). The Court of Appeals has held that notice and claims reporting provisions in public works contracts which "require the contractor to promptly notice and document its claims made under the provisions of the contract governing the substantive rights and liabilities of the parties" are "conditions precedent to suit or recovery." A.H.A. General Const., Inc. v. New York City Housing Auth., 92 N.Y.2d 20, (1998). The Court there observed that such provisions are "common in public works contracts," and that public policy favors strict enforcement because they "provide public agencies with timely notice of deviations from budgeted expenditures or of any supposed malfeasance, and allow them to take early steps to avoid extra or unnecessary expense, make any necessary adjustments, mitigate damages and avoid the waste of public funds." Id., si The Court of Appeals has further held that "[ejxpress conditions must be 7 11 of 22

12 literally performed; substantial performance will not suffice." MHR Capital Partners v. Presstek, Inc., 12 N.Y.3d 640, 645 (2009). Section 11.01(B) of the General Conditions expressly states that "[t]he Contractor's failure to comply with any or all parts of this Article shall be deemed to be:... (2) a waiver by the Contractor of all claims for additional compensation or damages as a result of said order. Work, action or omission." Bartlett Exh. 2, pp (emphasis added). At least two courts have held that the notice and claim reporting provisions of DASNY's General Conditions constitute express conditions precedent. Tougher Industries, Inc. v. Dormitory Auth. of the State of New York, 130 A.D.3d 1393, 1397 (3d Dept. 2015) (plaintiffs claim barred because it did not comply with condition precedent by providing timely notice); Travelers Cas. and Sur. Co. v. Dormitory Auth. of the State of New York, 735 F.Supp.2d 42, 75 (S.D.N.Y. 2010) (Article 11 of DASNY's General Conditions "constitutes an unambiguous condition precedent to any recovery for extra-work claims and is enforceable as an express condition under New York law"). Where a court finds that an express condition precedent exists within a contract, it must "enforce the will of the parties unless to do so will violate public policy," even if "the court may regret the harshness of such a condition." Oppenheimer & Co., supra, at 691 (citation omitted). The Appellate Division, First Department has consistently enforced express conditions precedent in construction contracts. See, e.g.. Dart Mechanical Corp. v. City of New York, 68 A.D.3d 664 (1 st Dept. 2009) ("plaintiff waived any claim for delay damages by failing to strictly comply with the contract's notice provisions"); Mezzacappa Bros., Inc. v. City of New York, 29 A.D.3d 494 (1 st Dept. 2006) (requirement that contractor serve a verified statement of claim was a condition precedent to suit or recovery, requiring strict compliance); Bat-Jac Contracting, Inc. v. New York City Housing Authority, 1 A.D.3d 128 (1 st Dept. 2003) ("Plaintiff failed to file a timely notice of 12 of 22

13 claim, which is expressly made a prerequisite to recovery under the parties' contract and which is subject to strict construction as a matter of public policy"); Morelli Masons, Inc. v, Peter Scalamandre & Sons, 294 A.D.2d 113 (1 st Dept. 2002) (motion court properly held that plaintiff failed to strictly comply with notice provision in subcontract, which "specifically provided that the failure to comply with such provision would constitute a waiver of the subcontractor's claim for damages"); Pettinelli Electric Co. v. Bd. of Ed. of the City of New York, 226 A.D.2d 176 (1 st Dept. 1996) (summary judgment properly granted where plaintiff failed to comply with contract's notification requirements); A.I. Smith Electrical Contractors, Inc. v. City of New York, 181 A.D.2d 542 (1 st Dept. 1992) (summary judgment properly granted where plaintiff ignored contract provisions requiring notification "that work being directed by the City as contract work was, in plaintiffs view, extra work entitling it to additional compensation"). A. Forced COPs Ten of the change order proposals at issue in Danco's second cause of action (i.e., COPs 53, 61, 99, 153, 197, 199, 200, 210, 211 and 212) 1 and all sixteen of the change orders in Danco's third cause of action (i.e., COPs 24, 54, 97, 125, 133, 148, 155, 159, 161, 162, 174, 181, 193, 202, 203 and 208) 2 are forced change orders. This means that they are change orders that Danco refused to sign because DASNY approved amounts less than Danco had proposed, and DASNY then issued the change orders in the approved amounts without Danco's signature. Bartlett Aff, f Under the Contract, the compensation for a change order is determined by DASNY, using any of three methods, one of which is "[b]y estimating the fair and reasonable cost of the Extra Work." Bartlett Exh. 2, 8.01(B), pp The COPs in Danco's second cause of action that became forced change orders are addressed in Mr. Bartlett's affidavit atfflf23 to The forced change orders in Danco's third cause of action are addressed in Mr. Bartlett's affidavit at 1f 64 to of 22

14 Section 11.03(A) of the General Conditions provides that "[a]ny decision or determination of the Consultant, Owner or the Owner's Representative shall be final, binding and conclusive on the Contractor unless the Contractor shall, within ten (10) working days after said decision, make and deliver to the Owner a verified written statement of the Contractor's contention that said decision is contrary to a provision of the Contract." Bartlett Exh. 2, p. 20. The decision to approve a change order amount constituted a "decision or determination" under Section 11.03(A) that triggered the requirement of a verified written statement. Bartlett Aff, f 21. Accordingly, Danco was required to deliver a verified written statement to DASNY to preserve its right to make a claim. See, e.g., Schindler Elevator Corp. v. Tully Const. Co., Inc., 139 A.D.3d 930 (2d Dept. 2016) (denial of summary judgment reversed and complaint dismissed, because timely submission of a verified written statement was an express condition precedent); Mezzacappa Bros., supra at (same). As stated in Mr. Bartlett's affidavit (at ]flf 24 and 64), Danco did not deliver a verified written statement contending that DASNY's determination was contrary to a provision of the Contract for any of these forced change orders. Danco's "failure to comply with any or all parts of this Article" is deemed to be a conclusive determination that there was no Extra Work, and a waiver by Danco of all claims for additional compensation. As discussed above, under the wellestablished law of this State, Danco's failure to comply with this express condition precedent bars its recovery in this action. B. Rejected COPs Nineteen of the change order proposals at issue in Danco's second cause of action (i.e., COPs 46R, 73, 81, 85, 91, 94, 147, 149, 152, 157, 163, 167, 182, 201, 206, 213, 215, 219 and of 22

15 223) 3 were expressly rejected in writing by DASNY (the Owner), Turner (the Owner's Representative) or RVA (the Consultant). Because the rejections of these change order proposals were "decision[s] or determination[s] of the Consultant, Owner or the Owner's Representative" under General Conditions 11.03(A), Danco was required to deliver a verified written statement to DASNY in response to each rejection to preserve its right to make a claim. See, e.g., Schindler Elevator Corp., supra; Mezzacappa Bros., supra. As set forth in Mr. Bartlett's affidavit (at 135), Danco did not deliver a written verified statement to DASNY stating its contention that the determination was contrary to a provision of the Contract with respect to any of these rejected change order proposals. Accordingly, just like the forced change orders above, these claims are barred by Danco's failure to comply with the Contract's express condition precedent. C. COPs For Work Performed Without a Written Notice to Proceed and/or Untimely Under General Conditions 11.01(A)(2) Section 8.01(A) of the General Conditions states that "No claims for Extra Work shall be allowed unless such Extra Work is ordered by the Owner via a written Notice to Proceed." Bartlett Exh. 2, p. 11. This requirement is repeated in Article 11 of the General Conditions, wherein 11.01(B) states that "No claim for Extra Work shall be allowed unless the same was done pursuant to a written order of the Owner," and is therefore an express condition precedent resulting in a waiver in the absence of strict compliance by the contractor. Travelers Cas. and Sur. Co., supra at 75. Two of the change order proposals in Danco's second cause of action - - COP 95 and COP were for work that was not performed pursuant to a written Notice to Proceed from DASNY. This is because both of these proposals were clearly for work that was included within 3 The change order proposals that were rejected are addressed in Mr. Bartlett's affidavit at %% 35 to of 22

16 Danco's original scope of work. General Conditions 14.03(A), entitled "Protection of Work and Property," states that "The Contractor shall, at all times, guard the Owner's property from injury or loss in connection with the Work. The Contractor shall, at all times, guard and protect the Contractor's Work, and adjacent property. The Contractor shall replace or make good any said loss or injury unless said loss or injury is caused directly by the Owner." 4 Bartlett Exh. 2, p COPs 95 and 214 concerned work performed by Danco to repair its own work that had been damaged, which was Danco's responsibility under the express terms of 14.03(A). COP 95 concerned work to repair "destruction" of "temporary [lighting] fixtures that were previously installed and billed for." Bartlett Aff, 1f56, Exh. 71. COP 214 was for work to "remove[ ] and reinstallf ] a new floor box" because the previously installed box had been "mangled." Bartlett Aff, 57, Exh. 73. In neither instance did Danco allege that the damage was caused directly by DASNY. Danco was required to perform this work under its Contract, but nonetheless submitted change order proposals to DASNY afterward in an attempt to recover the costs. However, DASNY had not issued a written Notice to Proceed to Danco in either instance, because there was no question that the repair costs were Danco's responsibility under the Contract. In the absence of a written Notice to Proceed with respect to both COP 95 and COP 214, Danco is barred by the Contract from making any claim for this work. Danco is similarly barred from recovering on COPs 216, 217 and 218, which were also submitted by Danco in the absence of a written Notice to Proceed. These COPs sought reimbursement for overtime paid to Danco's employees in connection with base contract work, 4 This requirement is consistent with General Conditions 13.01(D), which provides that "Should the Contractor sustain any damage through any act or omission of any other contractor having a contract with the Owner or through any act or omission of any Subcontractor of said other contractor, the Contractor shall have no claim against the Owner for said damage." Bartlett Exh. 2, p of 22

17 which was not authorized by DASNY in writing. Bartlett Aff, ^ 58; Bartlett Exh. 64. Moreover, COPs 216, 217 and 218 were not timely submitted pursuant to 11.01(A)(2) of the General Conditions. The requirement under 11.01(A)(2) that Danco file with DASNY a "written notice of the basis" of a claim for Extra Work "within fifteen (15) working days after being ordered to perform the Work claimed by the Contractor to be Extra Work or within fifteen (15) working days after commencing performance of the Work, whichever date shall be earlier," is an express condition precedent. Travelers Cas. and Sur. Co., supra at 75; A.I. Smith Electrical Contrs., supra at 45. Danco submitted all three of these COPs to DASNY on July 20, 2009 (see Bartlett Exh. 64), seeking payment for overtime work that commenced on February 21, 2009 (COP 216), March 23, 2009 (COP 217), and April 23, 2009 (COP 218). Accordingly, by submitting these COPs more than 15 working days after the commencement of the work at issue, Danco is deemed to have waived these claims. Danco is also deemed to have waived its claim with respect to COP 224, which was submitted eighteen months after DASNY's issuance of a "Disputed Work" Notice to Proceed (Bartlett Aff, 59; Bartlett Exhs. 74 and 75). Recovery on that claim is therefore barred under 11.01(A)(2) and 11.01(B) of the General Conditions. II. There is no Disputed Issue of Fact Concerning Four of the COPs in Danco's Second Cause of Action, Upon Which Danco and DASNY Agree on the Value. Documentary evidence demonstrates that Danco and DASNY agreed on the value of four of the change order proposals set forth in Danco's second cause of action. It is undisputed that: (i) Danco's COP 195 was approved by DASNY in the full amount of $3, (Bartlett Aff, f61; Bartlett Exhs. 78 and 79); (ii) Danco's COP 207 was approved by DASNY in the full amount of $1, (Bartlett Aff, f62; Bartlett Exhs. 80 and 81); and (iii) Danco's COP of 22

18 was approved by DASNY in the full amount of $3, (Bartlett Aff, ^63; Bartlett Exhs. 82 and 83). Moreover, Danco's COP 63 resulted in a change order signed by Danny Ramnarain of Danco in the amount of $82, Bartlett Aff, 144. Section 8.01(E) of the General Conditions provides in relevant part that "the compensation specified [in a change order] for Extra Work includes full payment for the Extra Work covered thereby, and the Contractor waives all rights to any other compensation for said Extra Work." Accordingly, Danco's counsel stipulated that the parties agreed on the value of COP 63, and that COP 63 is therefore not in dispute. See Affirmation of Timothy B. Froessel, dated August 4, 2016 ("Froessel Aff"), 17 and Exh. 3. As there is no disputed issue of fact concerning Danco's COPs 63, 195, 207 and 209, summary judgment should be granted as to these four change order proposals in Danco's second cause of action. These COPs can and will be accounted for in their agreed-upon values in a trial of Danco's first cause of action for the contract balance. III. The Quasi-Contract Claims Alleged in Danco's Fourth, Fifth and Sixth Causes of Action Cannot be Maintained Because The Parties Have an Enforceable Contract. A. Danco's Fourth (Quantum Meruit) and Sixth (Unjust Enrichment) Causes of Action May Not be Maintained In New York, "[t]he existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for event arising out of the same subject matter." Clark-Fitzpatrick, Inc. v. Long Island Rail Road Co., 70 N. Y.2d 382, 388 (1987). In Clark-Fitzpatrick, the Court of Appeals reiterated a long-standing principle of contract law that it is "impermissible... to seek damages in an action sounding in quasi contract where the suing party has fully performed on a valid written agreement, the existence of which is of 22

19 undisputed, and the scope of which clearly covers the dispute between the parties." Id., 70 N.Y.2d at 389. Courts have repeatedly held that claims for quantum meruit (as alleged in Danco's fourth cause of action) and unjust enrichment (as alleged in Danco's sixth cause of action) are exactly the type of quasi contract causes of action that must be dismissed when there is a valid written contract between the parties. See, e.g., Gordon v. Credno, 102 A.D.3d 584 (1 st Dept. 2013) ("because the express agreement governs the provision of these legal services, the IAS court should have dismissed the parallel claims for unjust enrichment and quantum meruit"); Sound Beyond Electrical Corp. v. City of New York, 100 A.D.3d 412 (1 st Dept. 2012) ("the quasicontract claims for restitution, quantum meruit, and unjust enrichment are barred by the existence of a valid contract between plaintiff and the City, covering the subject matter of their dispute"); Tadco Construction Corp. v. Dormitory Auth. of the State of New York, 93 A.D.3d 619 (1 st Dept. 2012) ("Plaintiffs claims for unjust enrichment and quantum meruit are precluded by the existence of the parties' contract"); Scott v. Fields, 92 A.D.3d 666 (2d Dept. 2012) (affirming dismissal of quasi-contract cause of action because "there is an express contract of sale that was signed by the plaintiff and Fields"); American Curtainwall, Inc. v. NTD Construction Corp., 83 A.D.3d 597 (2d Dept. 2011) (plaintiffs cause of action sounding in quantum meruit held to be "precluded by the valid and enforceable written contracts governing the subject matter in dispute"). In this case, DASNY and Danco both acknowledge the existence of a valid written contract between them that governs this dispute. Bartlett Aff, 19; Froessel Aff, 15 and Exh. 1 (wherein Danco alleges in paragraphs 4 and 5 of its Complaint that the Contract "was in all respects regular and was duly approved by all persons, officials and public bodies necessary to of 22

20 render same valid, binding and enforceable," and that Danco "duly performed" its obligations under the Contract). Clark-Fitzpatrick, supra, is controlling and demonstrates the insufficiency of Danco's quasi-contract claims. In Clark-Fitzpatrick, like the present case, it was undisputed that the parties had entered into a written contract that "specifically providfed] for project design changes with adjustments in compensation contemplated in light of those changes." Clark-Fitzpatrick, supra, 70 N.Y.2d at 389, 521 N.Y.S.2d 656. The plaintiff in Clark-Fitzpatrick, like Danco here, "chose not to rescind the agreement, but instead to complete performance of the contract and sue to recover damages." Id. Thus, like the plaintiff in Clark-Fitzpatrick, Danco "is now limited to recovery of damages on the contract, and may not seek to recover based on an alleged quasi contract." Id. Accordingly, summary judgment must be granted as to Danco's fourth and sixth causes of action sounding in quantum meruit and unjust enrichment, respectively. B. Danco's Fifth Cause of Action (Account Stated) May Not Be Maintained Summary judgment must also be granted against Danco's fifth cause of action for an account stated, because this matter involves a contract dispute. Danco's complaint action does not identify or itemize the "invoices and statements of account" that were allegedly rendered, and in any event there is there is ample evidence that DASNY disputed many of Danco's change order proposals, which presumably make up some part of the alleged account. Summary judgment is therefore appropriate. Simplex Grinnell v. Ultimate Realty, LLC, 38 A.D.3d 600 (2d Dept. 2007) (affirming grant of summary judgment on account stated cause of action). "An account stated is nothing more or less than a contract express or implied between the parties. It is an agreement which they have come to, regarding the amount due on past transactions." Enviroclean Services, LLC v. CEM, Inc., 12 A.D.3d 1042, 1043 (4 th Dept. 2004) of 22

21 (citation omitted). The rule "assumes that there exists some indebtedness owing between the parties or an express agreement between the parties to treat the statement as an account stated." Gurney, Becker & Bourne, Inc. v. Benderson Dev. Co., 47 N.Y.2d 995, 996 (1979). It is hornbook law, however, that "an account stated may not be utilized simply as another means to attempt to collect under a disputed contract." Martin H Bauman Assocs., Inc. v. H& MInternational Transport, Inc., 171 A.D.2d 479, 485 (1 st Dept. 1991). This is exactly what Danco attempts to do here, despite copious documentary evidence of DASNY's rejection or reduction of Danco's change order proposals (Bartlett Aff, , 35-54, 64-80), which clearly demonstrates that no agreement exists between the parties on an account balance. Courts in this state have repeatedly held that "an account stated cannot be made the instrument to create liability when none exists." Gurney, Becker & Bourne, Inc., supra. Accordingly, Danco may not maintain a cause of action against DASNY for an account stated, and summary judgment must be granted. Simplex Grinnell, supra of 22

22 CONCLUSION By reason of the foregoing, defendant DASNY respectfully requests that the Court enter an order pursuant to CPLR 3212: (i) granting summary judgment on 39 of the 40 change order proposals at issue in the second cause of action in plaintiffs complaint (all change order proposals except COP 180); (ii) granting summary judgment dismissing the third, fourth, fifth and sixth causes of action in plaintiffs complaint in their entirety; and (iii) such other and further relief as the Court may deem just and proper in the circumstances. Dated: New York, New York Augusts, 2016 HOLLAND & KNIGHT LLP Attorneys for Defendant Frederick R. Rohn Timothy B. Froessel 31 West 52 nd Street New York, New York (212) of 22