Depot Const. Corp. v. State, 39602
| Decision Date | 05 February 1964 |
| Docket Number | No. 39602,39602 |
| Citation | 246 N.Y.S.2d 527,41 Misc.2d 764 |
| Parties | DEPOT CONSTRUCTION CORP., Claimant, v. The STATE of New York. Claim |
| Court | New York Court of Claims |
Demov & Morris, New York City, for claimant, by William J. Murphy, Albany, of counsel.
Louis J. Lefkowitz, Atty. Gen., by Lawrence De Lucia, Asst. Atty. Gen., of counsel.
On or about March 6, 1958, the State, by the Department of Mental Hygiene, entered into a contract with the claimant corporation for the construction of 'Continued Treatment and Disturbed Patients' Building, Building No. 105, Manhattan State Hospital, Ward's Island, New York, pursuant to the State Architect's Standard Construction Specifications of November 1, 1955, and in accordance with Specification No. 8585-C, etc.' The work was to commence promptly and was to be completed on or before September 1, 1960, for the agreed sum of $6,359,000.
The work was performed and the job completed and officially accepted by the State on August 25, 1961. The final estimate was prepared by the State, upon which a check for the balance indicated therein to be due to the claimant was sent to the claimant, which the claimant rejected, claiming that it was not representative of all that was still due to it. As a result thereof, the present claim was filed.
Thereafter, this Court was moved for an order severing from the said claim that portion thereof relating to the monies concededly due to the claimant for the balance of the amount certified as earned under the contract and, by order entered September 28, 1961, said motion was granted, awarding to the claimant the sum of $322,577.46, which represented moneys concededly due to the claimant for the balance of the amount certified as earned in the final estimate and, at the same time, reserving the question of interest thereupon to be determined at the present trial of the remainder of the claim.
The present claim may be divided under three captions:
Stairway 'A'
Screeds
The Court finds that with regard to its claim for furnishing a reinforced concrete floor and a steel beam under the stairway in the basement of the building the claimant is entitled to only $56.000 it paid for No. 5 rods instead of No. 3 rods.
It seems to the Court that the claimant has chosen to read only Drawing 57/135 (see claimant's Findings Nos. 6 to 10, inclusive), when each and every sheet of the plans should have been considered. Sheet 57/127 indicates clearly that a concrete slab and a steel beam were required at the bottom of Stairway 'A'. This requirement is clearly set out, except that it did not specify any reinforcing rods. The Court allows a 15% overall profit on the $56.00, making a total award of $64.40.
We shall now consider the issue as to whether screeds were required by the contract. The Court finds in favor of the claimant. The Court finds that the pertinent portion of Article 2011 of the State Architect's Standard Construction Specifications which the State inserted in Amendment to Section 20 in the contract itself, states:
'Provide screeds at top of sub-base where rubber base is installed against plaster or masonry.'
The Court interprets the above to require the use of screeds where the base would be flat or flush from the floor up, even if a flat base element other than rubber were used. In this contract, however, the base required was a terrazzo splayed base, better known as hospital type base. This type base is installed as a continuation of the terrazzo floor itself, upwards against the wall, and it is made concave at the juncture of the floor and the wall. The Court does not believe that it is subject to the conditions of Article 2011 above mentioned. However, whether or not it might be affected by the provisions of Article 2011, such assumption would seem to be negated by claimant's Exhibit No. 12, which is a letter dated December 22, 1959, written by the State Architect to the claimant herein, in reply to objections raised by the claimant to an order requiring the installation of screeds. The letter concedes that 'the lathing subcontractor is correct and the specification inadvertently neglected to specify a screed under this section at the top of this hospital type base.' The letter then attempted to justify the demand of the State for the installation of screeds without additional charge to the State.
From all the testimony and evidence, the Court finds that said demand by the State was at variance with the specifications and the plans for the erection of the building, and interprets the admission of the Architect as being not so much an inadvertent neglect to specify 'screed' but, rather, a cover to demand additional work from the claimant without payment therefor.
The Court finds that the claimant is entitled to them sum of $6,930.00 for the screeds, which includes the cost to claimant plus profit and overhead.
The last cause of action involves the dispute which arose concerning the rock excavation. With regard to this claim, the Court finds it necessary to set out the paragraph entitled 'Sub-Surface Data' contained in the contract:
The Court finds that the above paragraph is confusing, illogical, contradictory and even deceptive. It seems to have been drawn with the thought in mind of permitting easy escape on the part of the State from its own prime responsibility to present to the prospective bidders as complete and efficient information concerning the sub-strata of the situs as modern techniques and machinery make possible.
The Court finds that the State was haphazard in the manner in which it took the borings.
The Court finds it difficult to accept the rationale adopted by the State whereby, on one hand, it describes its borings as unworthy of reliance and, on the other hand, it makes its analysis thereof the very foundation for the claimant's bid.
An abbreviated analysis of this confusing process may prove of value in our quest to understand what to the Court seems to be a contradictory exposition of the State's policy in its dealings with bidders. In the first instance, the State makes the borings. It then represents such borings to be unworthy of reliance. From these same 'unworthy of reliance' borings the State prepares its...
To continue reading
Request your trial
-
M. L. Shalloo, Inc. v. Ricciardi & Sons Const., Inc.
...84 A.2d 579 (clear assertions as to rock content); Faber v. New York, 222 N.Y. 255, 259-261, 118 N.E. 609; Depot Constr. Corp. v. State, 41 Misc.2d 764, 246 N.Y.S.2d 527 (Ct.Cl.). Among facts found by the master which tend to suggest that the parties understood that Shalloo would rely upon ......
-
Megarry Bros., Inc. v. State
...Co. v. Croll (Del.), 192 A.2d 925; Hersey Gravel Co. v. State Highway Dept. 305 Mich. 333, 9 N.W.2d 567; Depot Const. Corp. v. State, 41 Misc.2d 764, 246 N.Y.S.2d 527. Neither could the inspector's role or representations in this case be construed in such a way as to justify recovery by the......