George Colon Contracting Corp. v. Morrison
| Decision Date | 13 July 1954 |
| Citation | 162 N.Y.S.2d 841 |
| Parties | GEORGE COLON CONTRACTING CORPORATION, Plaintiff, v. Joseph J. MORRISON, chairman, and Margaret K. Parker, Clarence O. Wilson, Albert C. Hyde, William A. Hamer and William L. Lawyer, Members, constituting the Watertown Housing Authority, Defendants. GEORGE COLON CONTRACTING CORPORATION, Plaintiff v. Donald Kenneth SARGENT, Frederick Seth Webster, Thomas Thompson Crenshaw, Milo Darwin Folley, co-partners doing business under the firm name and style of Sargent, Webster, Crenshaw & Folley, and Darrell Rippeteau, Defendants. |
| Court | New York Supreme Court |
Benedict Ginsberg, New York City (Charles Kissel, New York City, and Quimby & Gosier, Watertown, of counsel), for plaintiff.
W. Glenn Larmonth, Watertown (Hancock, Dorr, Ryan & Shove, Syracuse, Lewis C. Ryan and John F. Gates, Syracuse, of counsel), for defendant Watertown Housing Authority.
Hancock, Dorr, Ryan & Shove, Syracuse (Lewis C. Ryan, and John F. Gates, Syracuse, of counsel), for defendants Sargent, Webster, Crenshaw & Folley and Darrell Rippeteau.
LAPHAM, Official Referee.
This litigation revolves about low price housing project NYS-50, commonly known as Cloverdale Apartments, developed in the City of Watertown, New York, under the Watertown Housing Authority, which retained the firm of Sargent, Webster, Crenshaw & Folley as architects. The George Colon Contracting Corporation, hereafter referred to as the contractor or Colon, was the successful bidder for the general construction on a base bid of $739,800, and entered into a form of contract with the authority for that phase of the project. Work was started early in September, 1950. Pursuant to its notice, Colon left the job August 21, 1951, and on the same day served a summons and complaint based on quantum meruit in an action against the authority, alleging breach of contract, and also instituted a second action against the architects and their employee, Darrell Rippeteau. Issue was later joined in each action. Immediately after the plaintiff left the job, the authority served notice of termination of the contract as of August 25. In the meantime, at a meeting in the office of the State Commissioner of Housing in New York City on August 23, the contractor and authority entered into an agreement under which work was resumed and the plaintiff's right, if any, in its action was preserved. The architects were not a party to this agreement.
Mr. Justice William E. McClusky ordered the two actions tried together but not consolidated, and, also, on stipulation of the parties, ordered the cases referred to me as Official Referee for trial and determination. Mr. Justice Jesse E. Kingsley, on plaintiff's motion, ordered that the trial proceed at Watertown and New York City and such other places as the Referee might deem appropriate and consistent with the convenience of witnesses residing more than one hundred miles from Watertown.
The trial opened at Watertown November 16, 1953, and consumed thirty-six trial days, ending at Utica April 1, 1954, with a record of some fifty-five hundred pages and a mass of exhibits. This litigation had the advantage of thorough and skilful preparation and presentation by experienced and able counsel who submitted it to the Referee April 27, 1954.
On the trial, attorneys for the architects and authority moved to defer evidence of damage until the basic issue of liability might be determined. Counsel for plaintiff concurred, with the exception of some evidence incidental to other testimony, and an opinion on fair and reasonable value by an expert, with permission to withhold cross-examination until decision on liability. On that basis the motion was granted. In a hypothetical question embracing the claims advanced as causes for delay and hindrance, plaintiff introduced the opinion of its expert, Mr. Conforti, that his estimate of the fair and reasonable cost of doing the work was $1,041,103. On August 21, 1951, at a time when the contract work was far from completion, plaintiff served upon the authority a complaint in quantum meruit, claiming breach of the contract by the defendant and seeking to recover a balance of $491,652 over and above the $293,347.71 then paid. Two days later the parties entered into the agreement in New York which gave the defendant until February 1, 1952, to move, answer or otherwise plead. The authority duly answered by a general denial including starting date and claims of hindrance, delay and interference by it, alleged the plaintiff had failed to present claims within the five days required by the contract, or any claim, demand or notice as required by the Public Housing Law, and counterclaimed for $70,000. Subsequently, on April 22, 1952, plaintiff served on the state and authority a notice of claim for $1,136,936.32, less the amount then paid of $676,727.83, or a balance of $460,208.49. Pursuant to order of the court on Colon's motion, plaintiff then served a supplemental complaint on the authority, the state and the commissioner of housing, alleging the contract was entered into October 24, 1950; the commencement of work and due performance on its part until the contract was breached and terminated by the authority; that the defendant, its agents, servants and employees had hindered, delayed and interfered with plaintiff in the performance of its contract; pleaded the commencement of the original action on August 21, 1951; the agreement of August 23 under which it claimed the authority agreed to pay on a quantum meruit basis; waiver by defendants of notice of claim requirements, if any; resumption, and substantial completion of work on or about December 1, 1951 'except to the extent that such completion was rendered impossible by the acts and conduct' of the authority; full completion and full occupancy; breach and termination of the contract by the authority; breach of the August 23 agreement by the authority; service of notice, pursuant to §§ 157 and 15 of the Public Housing Law, on the authority, and the state and Division of Public Housing, and sought to recover $460,208.49 with interest from August 20, 1951, costs and disbursements. The complaint was dismissed as to the state and the Division of Public Housing, and the action came before the Referee against the authority only. This defendant's answer to the supplemental complaint was a general denial and alleged the submission and acceptance of plaintiff's proposal for general construction for the sum of $739,800; September 1 as the official starting date for commencement of work; the execution of the contract in accordance with the proposal and acceptance; failure of plaintiff to file any claim; abandonment by plaintiff; execution of the August 23, 1951 agreement; payment of $709,492.38 under the contract, and counterclaimed for $70,000 by reason of Colon's failure to perform the contract in 300 days, its abandonment of the work, its failure to substantially complete by December 1, 1951, according to the terms of the agreement; and repeated failure of contractor to obey reasonable directions of the architects, to provide competent full time superintendent, adequate workmen and materials.
In the action against the architects and Darrell Ripeteau, who as their employee had been their representative on this project for almost a year, Colon claimed its costs were increased by the unusual, uneconomical and unreasonable methods by which they directed plaintiff to perform the work to its damage in the sum of $491,652.29, and by a second cause of action sought punitive damage in the sum of $1,000,000 by reason of conduct maliciously motivated. Motion to dismiss the complaint against these defendants, made at the close of plaintiff's case, was granted on the ground there was no convincing evidence of any act on the part of the architects or their employees and agents indicating they were motivated by self-interest or hope of some private gain, or acted outside the scope of their authority as alter ego of the Watertown Housing Authority, or of any act or omission on the part of the architects or their agents sustaining either cause of action set forth in the complaint.
The Colon name has been identified with the construction business for many years under various designations. William H. Egan, a man now in his 75th year, with an impressive background of approximately fifty years in this field, had been connected with various Colon enterprises for some time. Following the death of George Colon, Sr. in 1936, the George Colon Contracting Corporation was organized with George Colon, Jr. as President and Mr. Egan as Vice-President in charge of operations. The present Mr. Colon was ill, confined his activities to the office and handled none of the construction work. He appeared in court briefly and was not called as a witness. In 1948-1949, this corporation under Mr. Egan's management had successfully completed the general construction, under a contract described as identical to the one before us, of a somewhat larger but similar housing project at Fulton, New York, not far from Watertown, under the supervision of the same architectural firm, but with Mr. Webster of the Syracuse office in charge.
The state, while not a party to the contract or to this litigation, has a dominant role in this, as in every housing project under its aegis. In accordance with the provision of the State Constitution, Art. X, § 5, the Watertown Housing Authority was created by legislative Act, § 1296, Public Authorities Law.
(Public Housing Law.) Ciulla v. State, 191 Misc. 528, 77 N.Y.S.2d 545, 549.
On September 14, 1949, the Commissioner of Housing of the State of New York, the Mayor of the City of Watertown and the authority...
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