You are here: / / PLAINTIFF’S FAILURE TO SATISFY A NON-MATERIAL CONDITION PRECEDENT...

PLAINTIFF’S FAILURE TO SATISFY A NON-MATERIAL CONDITION PRECEDENT DID NOT JUSTIFY THE AWARD OF SUMMARY JUDGMENT TO DEFENDANT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the failure to satisfy a non-material condition precedent, which did not prejudice the defendant, did not justify summary judgment in favor of defendant:

It is undisputed that plaintiff failed to satisfy a condition precedent to recovering disputed costs for extra work on which defendant forced price reductions. Although plaintiff gave detailed written statements contesting defendant’s determinations of the fair and reasonable value of the extra work pursuant to section 8.01(B), it failed to give verified statements pursuant to section 11.03(A) of the contractual General Conditions.

Nevertheless, we conclude that plaintiff should be excused from the non-occurrence of that condition, because otherwise it would suffer a disproportionate forfeiture, and the occurrence of the condition was not a material part of the agreed exchange … . Defendant does not argue that plaintiff failed to document the costs of the claimed extra work, to provide timely notice of its claims for extra work, or to provide timely notice of its objections to defendant’s rejections of and price reductions on the claimed extra work. Nor does it contend other than in conclusory terms that plaintiff’s failure to submit verified written statements was prejudicial to it. Moreover, the cases on which defendant relies did not consider whether the failure to strictly comply with a condition precedent should be excused to avoid a disproportionate forfeiture under the circumstances of a case such as this, where the noncompliance is de minimis and defendant has shown no prejudice whatsoever … . Danco Elec. Contrs., Inc. v Dormitory Auth. of the State of N.Y., 2018 NY Slip Op 03935, First Dept 6-5-18

​CONTRACT LAW (PLAINTIFF’S FAILURE TO SATISFY A NON-MATERIAL CONDITION PRECEDENT DID NOT JUSTIFY THE AWARD OF SUMMARY JUDGMENT TO DEFENDANT (FIRST DEPT))/CONDITION PRECEDENT (CONTRACT LAW, PLAINTIFF’S FAILURE TO SATISFY A NON-MATERIAL CONDITION PRECEDENT DID NOT JUSTIFY THE AWARD OF SUMMARY JUDGMENT TO DEFENDANT (FIRST DEPT))

You might also like
Cause of Action for Fraud Based Upon Alleged Misrepresentation of Insurance Coverage Not Stated
BECAUSE THE DEFENDANT EMPLOYER SUFFERED NO DAMAGE AS A RESULT OF PLAINTIFF’S BREACH OF THE CONFIDENTIALITY PROVISION OF THE EMPLOYMENT CONTRACT, DEFENDANT EMPLOYER WAS NOT ENTITLED TO ENFORCEMENT OF THE LIQUIDATED DAMAGES PROVISION IN THE CONTRACT; PLAINTIFF’S BREACH-OF-AN-ORAL-CONTRACT CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE PLAINTIFF SUBMITTED EVIDENCE OF PARTIAL PERFORMANCE BY DEFENDANT AND PLAINTIFF’S RELIANCE ON THE ORAL MODIFICATION (FIRST DEPT).
QUESTION OF FACT WHETHER SKIER ACTED RECKLESSLY, THEREBY RENDERING THE ASSUMPTION OF RISK DOCTRINE INAPPLICABLE.
UNDERCOVER OFFICER’S DISTRESS SIGNAL, A GROUP OF MEN NEAR THE UNDERCOVER OFFICER YELLING, DEFENDANT’S STRUGGLING WITH THE UNDERCOVER OFFICER, DEFENDANT’S BREAKING FREE OF AN OFFICER’S RESTRAINT AND RUNNING, DEFENDANT’S FORCIBLY TAKING PROPERTY FROM THE UNDERCOVER OFFICER, AND THE FELLOW OFFICER RULE, COMBINED TO JUSTIFY THE SEIZURE AND SEARCH OF DEFENDANT; THE MOTION COURT PROPERLY REOPENED THE SUPPRESSION HEARING TO ALLOW THE PEOPLE TO SUBMIT ADDITIONAL TESTIMONY (FIRST DEPT).
WATER ON LOCKER ROOM FLOOR WAS NOT NECESSARILY INCIDENTAL TO USE OF THE AREA, DEFENSE MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED.
PLAINTIFF RAISED QUESTIONS OF FACT ABOUT HIS SEXUAL HARASSMENT AND RETALIATION CAUSES OF ACTION AGAINST HIS EMPLOYER (FIRST DEPT).
THE 2009 ROBERTS CASE APPLIES RETROACTIVELY TO RENT OVERCHARGES STEMMING FROM THE RENTAL OF DEREGULATED APARTMENTS BY LANDLORDS RECEIVING J-51 TAX BENEFITS; THE OVERCHARGES HERE MUST BE RE-CALCULATED IN ACCORDANCE WITH A RECENT RULING BY THE COURT OF APPEALS; THE CLASS OF TENANTS IN THIS RENT OVERCHARGE ACTION SHOULD NOT HAVE BEEN EXPANDED BY SUPREME COURT (FIRST DEPT).
PLAINTIFFS-TENANTS STATED CLAIMS FOR TENANT HARASSMENT, PRIVATE NUISANCE, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE DAMAGES FOR FAILURE TO PROVIDE ELECTRICITY, WATER, HEAT AND VENTILATION (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CLAIMANT WAS ASSAULTED ON TRANSIT AUTHORITY PROPERTY WHILE WEARING HER TRANSIT... HUSBAND ENTITLED TO REVOKE HIS CONSENT TO USE OF A FROZEN EMBRYO, EMBRYO AWARDED...