Manshul Const. Corp. v. City of New York

• Decision Date: 12 September 1988
• Citation: 143 A.D.2d 333,532 N.Y.S.2d 419
• Parties: MANSHUL CONSTRUCTION CORP., Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants Third-Party Plaintiffs-Appellants, et al., Defendant, Julius Shulman, et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 419

532 N.Y.S.2d 419

143 A.D.2d 333

MANSHUL CONSTRUCTION CORP., Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants Third-Party

Plaintiffs-Appellants, et al., Defendant,

Julius Shulman, et al., Third-Party Defendants-Respondents.

Supreme Court, Appellate Division,

Second Department.

Sept. 12, 1988.

Peter L. Zimroth, Corporation Counsel, New York City (John F. Grubin and Allen E. Burns, of counsel), for defendants third-party plaintiffs-appellants.

McDonough Marcus Cohn & Tretter, P.C., New York City (Robert I. Lesser and Micheal M. Feigin, of counsel), for plaintiff-respondent and third-party defendants-respondents.

Before BRACKEN, J.P., and EIBER, KOOPER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for, inter alia, breach of contract, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Kings County (Rader, J.), dated July 1, 1987, which (1) granted the motion of the plaintiff and third-party defendants for summa judgment dismissing the second counterclaim and third-party complaint and (2) denied their cross motion for leave to amend their answer to assert a third counterclaim for rescission of the contract.

ORDERED that the order is affirmed, with costs.

The plaintiff, Manshul Construction Corporation, was awarded a contract by the City of New York and the Department of Parks and Recreation (hereinafter the appellants) for the construction and rehabilitation of the "Betsy Head Pool and Park" project in Brooklyn. The plaintiff had submitted a bid wherein it agreed to complete the project within 455 consecutive calendar days, for the cost of $2,523,000. This offer had been the lowest bid received by the defendants, although the appellants' own engineer estimated that the project would cost only $2,424,606.

The plaintiff was unable to complete performance within the time specified in the contract. Claiming that the delay in performance was caused by the appellants, the plaintiff commenced the instant action in an effort to recover damages, inter alia, for breach of contract. Specifically, the plaintiff sought compensation for the sums it was required to expend and the additional work it was compelled to perform as a result of the obstacles and delays encountered in completing the project. The plaintiff alleged, in eight causes of action, that the appellants were responsible for the delay and should be held accountable for the damages which ensued, in that the appellants had issued approximately 40 change of work orders; they failed to coordinate the work of other contractors assigned to the project; they failed to provide adequate access and full-time supervision and they had supplied defective drawings and specifications for the project. The plaintiff alleged that as a result of the foregoing, it was caused to perform work other than and in addition to that required by the contract. The plaintiff also sought to recover punitive damages, in the sum of $6,000,000, based upon a variety of tortious acts allegedly committed by the appellants.

In an amended answer dated June 6, 1984, the appellants generally denied the material allegations of the complaint. They also raised 11 affirmative defenses and interposed two counterclaims. The second counterclaim which is the subject of this appeal, alleged, in pertinent part, that the plaintiff "intentionally and knowingly submitted a bid in an amount which was less than the sum [it] intended to exact from defendant". The appellants, therefore, requested that they be awarded liquidated damages in the sum of $74,725, as well as substantial punitive damages, by reason of the plaintiff's alleged misrepresentations and fraudulent conduct in "pressur[ing] the appellants into giving it monies over and above the amount which it had agreed to accept for the work".

The appellants subsequently...