Justice David Schmidt
Plaintiff moved for partial summary judgment on its second and forth causes of action. FC 80 DeKalb Associates cross-moved for dismissal of the second and third causes of action, and partial summary judgment against plaintiff's fourth cause of action arguing plaintiff's mechanic's lien must be reduced as a consequence of the dismissal of the second and third claims. Plaintiff sued to recover sums allegedly owed by FC under a construction contract. Following the start of its work, plaintiff discovered it would require reinforcement steel in excess of the three million pounds stated in the scope of work provisions. It sued to recover nearly $3.5 million representing the fair and reasonable value of extra and additional work performed in conjunction with the project. The court noted plaintiff was not precluded from asserting its claims by a waiver provision in the parties' agreement as the additional compensation was sought for changes in work, not "for other claims outside the scope of the contract." Thus, defendant was not entitled to dismissal of plaintiff's second and third causes of action on the ground it did not provide notice, and it was clear plaintiff did not waive entitlement to further payments. Thus, defendants' cross-motion, as well as plaintiff's motion was denied.
