Buckley & Co., Inc. v. City of New York

• Decision Date: 24 July 1986
• Citation: 505 N.Y.S.2d 140,121 A.D.2d 933
• Court: New York Supreme Court — Appellate Division
• Parties: BUCKLEY & COMPANY, INC., Plaintiff-Respondent-Appellant, v. The CITY OF NEW YORK, Defendant-Appellant-Respondent.

Page 140

505 N.Y.S.2d 140

121 A.D.2d 933

BUCKLEY & COMPANY, INC., Plaintiff-Respondent-Appellant, v.The CITY OF NEW YORK, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division First Department.

July 24, 1986.

L. Cantor, New York City, for plaintiff-respondent-appellant.

F. Kolikoff, New York City, for defendant-appellant-respondent.

Before MURPHY, P.J., and KUPFERMAN, ASCH, KASSAL and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, (Martin Evans, J.), entered December 4, 1984, which granted defendantCity of New York's motion for summary judgment dismissing plaintiffBuckley & Company, Inc.'s third and fourth causes of action insofar as they seek delay damages, but which sua sponte granted plaintiff leave to replead the dismissed causes, and which denied defendant's motion to dismiss plaintiff's second cause of action seeking compensation for extra and additional work, unanimously modified, on the law, plaintiff's second cause of action is dismissed and those portions of the order appealed from granting plaintiff leave to replead its third and fourth causes are deleted, and except as modified, affirmed, with costs to defendant-appellant.

DefendantCity of New York(City) awarded plaintiffBuckley & Company, Inc.(Buckley) a contract to construct a pumping station.The contract price was $8,442,130.Work on the construction project was to begin in June 1966 and was to be completed in June 1968.Problems, however, developed at the excavation site.A cofferdam designed by the City to prevent seepage into the excavation proved ineffective.This gave rise to repeated delays while alternatives to the cofferdam were devised and implemented.The project was not completed until 1976.

In its third and fourth causes of action plaintiff seeks to recover damages incurred as a result of the delays eventuated by the City's improper design of the cofferdam.Article 13 of the contract, however, provides:

The Contractor agrees to make no claim for damages for delay in the performance of this contract occasioned by any act or omission to act of the City or any of its representatives, and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work as provided herein.

The identical language has been construed by the Court of Appeals to create a bar to any claim for delay damages where the delay was within the contemplation of the contracting parties and was not caused by the contractee's willful misconduct or abandonment of the project.(Kalish-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 461 N.Y.S.2d 746, 448 N.E.2d 413;Corinno Civetta v. City of New York, Catapano v. City of New York, Honeywell v. City of New York, Nab-Tern Constructors v. City of New York, consolidated and decided by Ct ofApp, May 6, 1986, 67 N.Y.2d 297, 502 N.Y.S.2d 681, 493 N.E.2d 905).As the Court of Appeals observed, this waiver provision evidences the parties' unambiguous intent to have the contractor absorb the costs of the contractee's delay.(Kalish-Jarcho, supra, at 384, 461 N.Y.S.2d 746, 448 N.E.2d 413).

Manifestly, the parties were aware that subsurface conditions might delay completion of the project.It was, in fact, for this reason that section 4(b) of the "information for bidders", deemed part of the contract by Chapter 1, Article 1 of the contract, provided a procedure to modify the agreement should additional work be necessitated by unanticipated subsurface conditions.Thus, while the conditions themselves may not have been anticipated, the possibility, however unlikely, of their arising was contemplated and addressed by the parties in their agreement.Plaintiff may not then avoid the bar to delay damages posed by the contract construed according to the rule of Kalish-Jarcho by claiming that the delay was uncontemplated.

Nor may the contractual bar to delay damages here be avoided by reason of the contractee's willful misconduct.Along with Trial Term, we are unable to find any evidence of conduct by the City so grossly negligent as to constitute a predicate for a delay damage claim in the face of the contract's broad exculpatory clause.On the record before us it appears that the City was at most simply negligent in its evaluation of the subsurface conditions and design of the cofferdam.Delays caused by the contractee's ordinary negligence, however, fall well within the scope of the above quoted exculpatory clause and may not, therefore, support a claim for delay damages.

For the aforementioned reasons, plaintiff's third and fourth causes of action for delay damages were properly dismissed by Trial Term.Having granted defendant's motion for summary judgment as to these causes, however, it was error for Trial Term to sua sponte allow plaintiff leave to replead.A motion for summary judgment does not direct the court's attention to the sufficiency of the pleading, but rather to the factual basis for the action or defense.(Goodman v. Mutual Broadcasting System, Inc., 16 Misc.2d 858, 860, 185 N.Y.S.2d 152[Sup.Ct. QueensCo.1959]aff'd10 A.D.2d 632, 196 N.Y.S.2d 313[2d Dept., 1960] ).Once a court has granted or denied a summary judgment motion based on the facts adduced before it, the matter is res judicata (See4 Weinstein-Korn-Miller, New York Civil Practicep 3212.13); new life may not be breathed into it through permissive repleading, even upon a showing of merit.The time to demonstrate the merit of an action or defense challenged on a motion for summary judgment is before the motion is decided (S.J. Capelin Assoc., Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776[1974] ).The conclusive effect of a judgment on the merits may not be fatally undermined, as it was here, by allowing the party whose cause is dismissed a second chance to litigate the matter.

Turning now to plaintiff's second cause of action, it seeks compensation for "extra and additional" work performed by plaintiff at the City's direction "under protest."The City maintains that...