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Appellate Division, Second Department: November 13, 2023

Handdown List released on:November 8, 2023

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By Barros, J.P.; Chambers, Warhit, Taylor, JJ.

FIVE STAR ELECTRIC CORP., app, v. SKANSKA USA BUILDING, INC., ET AL., res — (Index No. 705499/20) Arthur J. Semetis, P.C., New York, NY (Michael J. McDermott of counsel), for appellant. Peckar & Abramson, P.C., New York, NY (Alan Winkler of counsel), for respondents. In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered January 19, 2022. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging breach of contract. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging breach of contract is denied. The defendant Skanska USA Building, Inc. (hereinafter Skanska), was the general contractor on a school construction project for the New York City School Construction Authority (hereinafter the SCA). Skanska subcontracted with the plaintiff to perform certain electrical work and to install a fire alarm system. The subcontract provided that payment from the SCA to Skanska on account of the plaintiff’s work was a condition precedent to payment by Skanska to the plaintiff. The plaintiff submitted requests for payment based upon unpaid contract balances, an amount due based on change orders, and delay damages. The plaintiff was advised, as late as January 2020, that the SCA was still reviewing the requests and therefore could not make a final payment to Skanska. On May 26, 2020, the plaintiff commenced this action, inter alia, to recover damages for breach of contract. The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging breach of contract on the ground that it was time-barred. The Supreme Court, among other things, granted that branch of the defendants’ motion, and the plaintiff appeals.

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