Beltrone Const. Co. Inc. v. State
| Decision Date | 24 December 1998 |
| Parties | 1998 N.Y. Slip Op. 11,425 BELTRONE CONSTRUCTION COMPANY INC., Appellant, v. STATE of New York, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Murphy, Burns, Barber & Murphy (William J. Murphy of counsel), Albany, for appellant.
Dennis C. Vacco, Attorney-General (Patrick Barnett Mulligan of counsel), Albany, for respondent.
Before: CREW, J.P., WHITE, PETERS, CARPINELLO and GRAFFEO, JJ.
Appeal from a judgment of the Court of Claims (King, J.), entered September 24, 1997, upon a decision of the court in favor of the State.
Claimant entered into a contract with the State as one of four prime construction contractors for the construction of a minimum security correctional facility in the Town of Coxsackie, Greene County. F.J. Zeronda Inc. (hereinafter Zeronda) was retained by claimant as a subcontractor to perform underground piping, placement of topsoil, seeding and the preparation of roadways for paving. The other prime contractors, M. Kramer and Sons (hereinafter Kramer), J.N. Futia Co. Inc. (hereinafter Futia) and E.W. Tompkins Company Inc. (hereinafter Tompkins), entered into separate contracts with the State for the project.
Claimant's contract with the State provided for physical completion by September 28, 1984 and substantial completion by September 1, 1984. Zeronda's contract with claimant also specified substantial completion by September 1, 1984. However, before Zeronda could engage in and finish its portion of the project, Kramer and Futia had to complete certain underground work which was originally scheduled to be completed by April 15, 1984. After several extensions, Kramer and Futia finished in November 1984 and Zeronda also concluded its work the same month. This action was commenced by claimant on behalf of Zeronda, seeking damages for its increased costs as a result of the State's failure to ensure that Kramer and Futia proceeded without unreasonable delay. There was also a second claim against the State for $38,259.52, representing Zeronda's costs for an additional three inches of crushed stone which Zeronda asserts was not included in the contract. At the conclusion of trial, the Court of Claims dismissed both claims and this appeal ensued.
The contract between claimant and the State recited that due to the award of more than one prime contract for the project, inherent delays were contemplated and the State could not "guarantee the unimpeded operations of any contractor". Furthermore, under the terms of the agreement, the State could not be held liable for ordinary delays or extraordinary delays "which occur by reason of any contractor's failure to comply with directions of the State or because of the neglect, failure or inability of any contractor to perform his work efficiently". However, the State was obligated to issue such directions as the situation may require after being notified of problems in writing. The State was generally also responsible for giving appropriate instructions and taking other measures to coordinate the progress of the work but was not liable for errors in judgment as to the best course of action. It is also undisputed that pursuant to the general conditions of the contract, Zeronda, as a subcontractor, was bound by the same contract provisions as claimant.
Claimant contends that Kramer's and Futia's delay in completing the underground work at the site was extraordinary and that the State failed to coordinate the work and failed to require adherence to the construction schedule as required under the contract. We disagree. Throughout the entire period of the delay, representatives of the State were in constant contact with claimant, Zeronda, Kramer and Futia with respect to problems experienced by all parties, and the resulting delays were, in fact, acknowledged by claimant. Claimant forwarded letters to the State dated February 17, 1984 and March 5, 1984 with respect to Kramer's and Futia's delays. On March 13, 1984 the State responded by directing Kramer to immediately begin the installation of underground piping utilizing double manpower to enable it to meet the target date of April 15, 1984. Additionally, on April 3, 1984 the State wrote to Futia and Kramer, stating that the "failure to comply with these contract requirements could result in our recommendation for termination or assessment of liquidated damages upon completion of the project" and directing them to make every effort to maintain scheduled progress in coordination with the other contractors.
On April 6, 1984 and April 9, 1984, cl...
To continue reading
Request your trial
-
Mid-State Indus., Ltd. v. State
...to have knowledge of facts which it would have discovered had it made a reasonable inspection” (Beltrone Constr. Co. v. State of New York, 256 A.D.2d 992, 995, 682 N.Y.S.2d 299 [1998];see Warren Bros. Co. v. New York State Thruway Auth., 34 N.Y.2d 770, 771, 358 N.Y.S.2d 139, 314 N.E.2d 878 ......