City School Dist. of City of Elmira v. McLane Const. Co., Inc.

• Decision Date: 03 December 1981
• Citation: City School Dist. of City of Elmira v. McLane Const. Co., Inc., 445 N.Y.S.2d 258, 85 A.D.2d 749 (N.Y. App. Div. 1981)
• Parties: , 1 Ed. Law Rep. 1221 CITY SCHOOL DISTRICT OF the CITY OF ELMIRA, New York, Respondent, v. McLANE CONSTRUCTION COMPANY, INC., et al., Respondents, and Weyerhaeuser Company, Defendant and Third-Party Plaintiff-Appellant; J. H. Baxter Company, Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 258

445 N.Y.S.2d 258

85 A.D.2d 749, 1 Ed. Law Rep. 1221

CITY SCHOOL DISTRICT OF the CITY OF ELMIRA, New York, Respondent, v. McLANE CONSTRUCTION COMPANY, INC., et al., Respondents and Weyerhaeuser Company, Defendant and Third-Party Plaintiff-Appellant J. H. Baxter Company, Third-Party Defendant.

Supreme Court, Appellate Division Third Department.

Dec. 3, 1981.

Personious, Mustico, Sullivan & Prechtl, Elmira (Jerome S. Prechtl, Elmira, of counsel) for Weyerhaeuser Co.

Buck, Gleckner, Danaher & Harpending, Elmira (M. Joseph Danaher, Elmira, of counsel) for respondent M. Matri & Sons, Inc.

Davidson, Burns & O'Mara, Elmira (John F. O'Mara, Elmira, of counsel) for respondent McLane Const. Co., Inc.

Sayles, Evans, Brayton, Palmer & Tifft, Elmira (Edward B. Hoffman, Elmira, of counsel) for respondent City School Dist. of the City of Elmira.

Before MAIN, J. P., and MIKOLL, YESAWICH, WEISS and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered December 27, 1979 in Chemung County, upon a verdict rendered at Trial Term (Swartwood, J.).

In 1976, the Elmira School District contracted with McLane Construction Company, Inc. for the construction of a swimming pool building which was to feature a roof consisting of natural wood decking supported by laminated wood beams. The appearance of the beams was central to the aesthetics of the architectural scheme as they were to contrast their natural beauty with the relatively stark unfinished concrete that comprised the balance of the structure. Even the effectiveness of the indirect lighting system employed in the building depended on the beams. As the building was to be a showplace, the site of large regional swimming competitions, the design was intentionally dramatic. It was contemplated that the beams, properly treated, would be essentially maintenance free.

McLane contracted with defendant M. Matri & Sons, Inc. to supply and erect the beams. Matri in turn purchased them from Weyerhaeuser Company for delivery in August, 1976, at a contract price of $116,000. Though aware of the plans and specifications, Weyerhaeuser subcontracted for a method of treating the beams, known as the "Dow Process", which it knew would result in staining and discoloration. There was also evidence that Weyerhaeuser failed to have the beams cleaned before the subcontractor treated them and as a consequence dirt permeated the wood.

When the beams arrived in Elmira in December, 1976, Weyerhaeuser's representative assured the school district that the clearly observable discoloration was merely road grime that could be cleaned. Based on these assurances, the school district, already in severe need of the beams to complete construction and thus protect against further loss from freezing temperatures, accepted them. It soon became apparent that the beams could not be adequately cleaned, but in fact were permanently discolored. This litigation ensued. The jury, which visited the pool area and viewed the beams, awarded $357,000 to the school district against Weyerhaeuser, $33,500 in favor of McLane against Weyerhaeuser, and $3,200 in favor of Matri against McLane.

The only issue of consequence is the proper measure...