Thomas Crimmins Contracting Co. v. City of New York

Sullivan, J. P. (dissenting).

This is an action on a construction contract to recover, inter alia, damages for changed subsurface conditions, as well as extra and protest (disputed) work. Defendants, the City of New York and the Transit Authority, appeal from the denial of their motion for leave to amend the answer to assert the affirmative defense that, pursuant to an alternative dispute resolution (ADR) procedure to which the parties had agreed, plaintiff submitted its claims for extra costs to the Transit Authority’s chief engineer, whose determinations denying those claims are final and…