Camarco Contractors, Inc. v. State

• Citation: 305 N.Y.S.2d 207,33 A.D.2d 717
• Decision Date: 25 November 1969
• Docket Number: No. 43787,43787
• Parties: CAMARCO CONTRACTORS, INC., Respondent-Appellant, v. STATE of New York et al., Appellants-Respondents. Claim
• Court: New York Supreme Court Appellate Division

Page 207

305 N.Y.S.2d 207

33 A.D.2d 717

CAMARCO CONTRACTORS, INC., Respondent-Appellant, v. STATE of New York et al., Appellants-Respondents.

Claim No. 43787.

Supreme Court, Appellate Division, Third Department.

Nov. 25, 1969.

Quartararo & Quartararo, Jack M. Quartararo, Poughkeepsie, for respondent-appellant.

Louis J. Lefkowitz, Atty. Gen., Richard A. Foster, for appellants-respondents.

Before HERLIHY, P.J., and STALEY, GREENBLOTT, and COOKE, JJ.

STALEY, Justice.

Cross appeals from a judgment of the Court of Claims, which awarded claimant damages for breach of contract occurring in the course of performance of its contract for partial improvements at Mohansic hansic State Park, which included preparations of a site for a swimming pool, parking lot and construction of a septic system.

The State appeals from that part of the decision of the Court of Claims which found that claimant was delayed a total of 225 days, which delay was attributable to the State, and awarded the claimant compensation for labor, equipment and utilities in the sum of $45,143.26, and for engineering charges, field supervision, offices and overhead in the sum of $13,035.90, and further from that part of the decision which awarded the sum of $14,940 as a partial return to claimant of the sum deducted as liquidated damages by the State from claimant's final estimate.

Claimant appeals from that part of the decision which denied claimant an award of damages for wasting by stock piling 52,593 cubic yards of excavated material originally planned for use as foundation embankment, and which further denied an award for damages for loss of profits as the result of deletions and changes of certain items in the contract.

The trial court found that the State was responsible for delaying claimant a total of 225 work days in the performance of its contract. Of this total the court allocated 89 days to site unavailability, 121 days to the State's change of plans and sequence of work, and 15 days to the revision of maps and plans. For the same delay of 225 work days plus 24 nonwork days, the court returned to claimant the sum of $14,940 from the amount charged by the State and deducted from claimant's final estimate.

Claimant, according to its progress schedule planned to commence excavation work on June 19, 1961, but was prevented from commencing until July 19, 1961 by reason of the State's failure to complete its cross sections in the area of the initial excavation, and thus the State became responsible for a 30 day delay. Appellant in its brief states that 'it was clear that the contractor had to wait until the initial cross sections were made' and that claimant's superintendent testified that the excavation work was begun on July 19, 1961 after the sections were taken. There is sufficient evidence in the record to support the trial court's finding of a 30 day delay between June 19, 1961 and July 19, 1961. Claimant originally planned to progress its work in the septic site first and at the pool site last. However, on June 22, 1961 the State directed claimant to give first preference to the pool site. The record does not indicate any objection by claimant to a change in its progress schedule to work at the pool site first, and it is further indicated that claimant could have worked buth areas simultaneously if it had chosen to do so. In any event, the contract provided that the contractor was required to cooperate with other contractors 'and to coordinate and arrange the sequence of his work to conform with the progressive operations of the work already under contract and to be put under contract.' The State was within its authority under contract to change claimant's sequence of work, and no delay can be attributed to such order. The State further contends that any delay was caused by claimant in failure to supply sufficient men and equipment to perform the work, which contention is supported by letters from the State to claimant dated July 7, 1961, August 29, 1961, September 21, 1961 and January 8, 1962 wherein the State advised claimant that its work on the project was behind schedule, and that claimant had failed to furnish 'adequate plant' or sufficient number of workers. The trial court's finding of 89 days' delay due to site unavailability should, therefore, be modified and reduced to a 30 day delay.

Claimant further contends that the State issued a stop order by letter dated December 12, 1961, which prevented claimant from continuing its excavation work until April 1962. The stop order letter directed claimant to cease excavating because the moisture content of the material excavated was excessive and would be unsuitable for fill and embankment. The letter further stated 'In the meantime, other operations in which excessive moisture is not a factor, may proceed.' On December 15, 1961 the State further advised claimant that there were several contract items on which it could be working at that time, and that its idleness was not authorized by the State. However, claimant shut the job down completely and did not return until February 1962. Claimant contends that it should have been allowed to continue excavating waste material during the winter, but was prevented from doing so by the stop order. We believe that claimant's contention that the total delay resulted from the stop order is speculative. There is evidence that the completion of the work was delayed, at least in part, by the contractor's failure to furnish adequate labor and equipment in...