Norelli & Oliver Const. Co. v. State, 43893

• Citation: 294 N.Y.S.2d 35,30 A.D.2d 992
• Decision Date: 17 October 1968
• Docket Number: No. 43893,43893
• Parties: NORELLI & OLIVER CONSTRUCTION CO., Inc., Respondent, v. STATE of New York et al., Appellants. Claim
• Court: New York Supreme Court Appellate Division

Page 35

294 N.Y.S.2d 35

30 A.D.2d 992

NORELLI & OLIVER CONSTRUCTION CO., Inc., Respondent, v. STATE of New York et al., Appellants.

Claim No. 43893.

Supreme Court, Appellate Division, Third Department.

Oct. 17, 1968.

Cribari, Scapolito, Solinger & Buderwitz, Joseph J. Buderwitz, Jr., Mt. Vernon, for respondent.

Louis J. Lefkowitz, Atty. Gen., John B. Poersch, Schenectady, for appellants.

Before GIBSON, P.J., REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.

GIBSON, Presiding Justice.

Appeal by the State from a judgment of the Court of Claims which awarded damages for the breach of a contract between claimant and Taconic State Park Commission (hereinafter referred to as the State) for the construction by claimant of a swimming pool and related facilities at Mohansic State Park.

The award of $539 upon claimant's third cause of action and that of $1,650 upon its fifth cause of action are sustained by the record and will not be further discussed. The remaining award was of $75,965.57 upon claimant's second cause of action, predicated on certain alleged contractual misrepresentations, largely with respect to the site, and the State's alleged failure to enforce the plumbing contractor's obligations under its contract.

At the time the contract in suit was entered into, the State made related contracts with other contractors, as required by section 135 of the State Finance Law, these including the Camarco contract for clearing the site and completing certain drainage work before the other contractors entered the area, and the Ricci contract for the plumbing work at the swimming pool and filter building.

The Court of Claims found that claimant was damaged in the amount of the award by 'extraordinary' delays encountered in the performance of its work, by reason of the failure of the State to reasonably advance, and to compel the performance of the contract work of Camarco and Ricci, according to the terms of their and claimant's contracts and the co-ordinated progress schedules. The result of the delays found was to cause increased costs, including those incurred by the extension of the work through the Winter months. Claimant argues for affirmance upon the authority of our decision in Forest Elec. Corp. v. State of New York, 30 A.D.2d 905, 292 N.Y.S.2d 589. The arguments of both parties proceed on the premise that the standard contract form provisions exempting the State from damage claims based on delay are not effective to save the State from liability on account of extraordinary delays for which it may be responsible. This was our conclusion in Forest (supra).

In the case before us, claimant's computation of delay begins with the scheduled commencement date of January 2, 1962, but work could not have been started in any event prior to the State Comptroller's approval of the contract on January 16. Although the record does not seem to us to sustain the finding that the State was responsible for the delay of Camarco, the site contractor, nevertheless, and at most, the uncleared site was responsible for delay only from January 22 to February 1, a delay neither extraordinary nor unreasonable. It is clear that claimant's work was prevented in February and into March by conditions of weather and that thus, at the outset, there was delay of from two to two and one-half months for which the State was not responsible and which would alone carry the contemplated end of the construction period into the 1962--1963 Winter months with the...