Plato Gen. Constr. Corp../Emco Tech Constr. Corp.. v. Dormitory Auth. of State

• Decision Date: 09 November 2011
• Citation: 89 A.D.3d 819,932 N.Y.S.2d 504,2011 N.Y. Slip Op. 08134
• Parties: PLATO GENERAL CONSTRUCTION CORP./EMCO TECH CONSTRUCTION CORP., JV, LLC, respondent-appellant,v.DORMITORY AUTHORITY OF STATE of New York, appellant-respondent, et al.;additional counterclaim defendants (and another title).
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 819
932 N.Y.S.2d 504
2011 N.Y. Slip Op. 08134

PLATO GENERAL CONSTRUCTION CORP./EMCO TECH CONSTRUCTION CORP., JV, LLC, respondent-appellant,
v.
DORMITORY AUTHORITY OF STATE of New York, appellant-respondent, et al.;additional counterclaim defendants (and another title).

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2011.

[932 N.Y.S.2d 506]

Holland & Knight LLP, New York, N.Y. (Frederick R. Rohn, Timothy B. Froessel, and Adam J. Paterno of counsel), for appellant-respondent.Georgoulis & Associates PLLC, New York, N.Y. (Chris Georgoulis of counsel), for respondent-appellant.MARK C. DILLON, J.P., RUTH C. BALKIN, RANDALL T. ENG, and JEFFREY A. COHEN, JJ.

[89 A.D.3d 819] In an action to recover damages for breach of contract, the defendant appeals from (1) a judgment of the Supreme Court, Kings County (Demarest, J.), entered June 10, 2010, which, upon a decision dated May 20, 2010, made after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $10,106,698, with interest thereon from March 30, 2005, representing an award in favor of the plaintiff in the sum of $10,285,698 on the complaint minus a setoff award in favor of the defendant in the sum of only $179,000 on the counterclaim, (2) an order of the same court dated October 15, 2010, which granted the plaintiff's motion, denominated as one for reargument, but which was, in effect, pursuant to CPLR 4404(b) to set aside so much of the decision dated May 20, 2010, as awarded the plaintiff prejudgment interest from March 30, 2005, and, upon setting aside that part of the decision, determined that the plaintiff was entitled to prejudgment interest from December 31, 2002, and (3) an amended judgment of the same court entered October 25, 2010, which, upon the order dated October 15, 2010, in effect, is in favor of the plaintiff and against it in the principal sum of $10,106,698, representing an award in favor of the plaintiff in the sum of $10,285,698 on the complaint minus a setoff award in favor of the defendant in the sum of only $179,000 on the counterclaim, with interest thereon from [89 A.D.3d 820] December 31, 2002, and the plaintiff cross-appeals, on the ground of inadequacy, from the same amended judgment. The notice

[932 N.Y.S.2d 507]

of cross appeal from the judgment entered June 10, 2010, is treated as a premature notice of cross appeal from the amended judgment entered October 25, 2010 ( see CPLR 5520[c] ).

ORDERED that the appeal from the judgment entered June 10, 2010, is dismissed, on the ground that the judgment entered June 10, 2010, was superseded by the amended judgment entered October 25, 2010; and it is further,

ORDERED that the appeal from the order dated October 15, 2010, is dismissed; and it is further,

ORDERED that the amended judgment entered October 25, 2010, is reversed, on the law and the facts, the judgment entered June 10, 2010, and the order dated October 15, 2010, are vacated, the complaint is dismissed, the defendant is awarded the principal sum of $179,000 on its counterclaim, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the amount of prejudgment interest to be awarded on the counterclaim, and thereafter for entry of an appropriate judgment; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the intermediate order dated October 15, 2010, must be dismissed because the right of direct appeal therefrom terminated with the entry of the amended judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the amended judgment ( see CPLR 5501[a][1] ).

The plaintiff commenced this action to recover damages for delays in the construction of the Brooklyn College Library, which involved the gut renovation of two existing buildings and construction of an addition. The defendant, Dormitory Authority of the State of New York (hereinafter DASNY), as agent for the owner, City University of New York (hereinafter CUNY), entered into a contract with Turner Construction Company (hereinafter Turner), which is not a party to this action, whereby Turner agreed to act as construction manager, “[e]xpedite and coordinate the work of all Contractors,” and prepare a schedule for the project.

On May 20, 1999, DASNY entered into a contract with the plaintiff, Plato General Construction Corp./EMCO Tech Construction Corp. (hereinafter Plato), as prime general contractor, to perform general construction work for [89 A.D.3d 821] $19,902,000. The contract between DASNY and Plato set the date of completion as March 20, 2001, and required Plato to pay liquidated damages of $1,000 per day for “each and every day that [Plato] shall be in default after the above time of completion.”

Pursuant to the “General Requirements” of the contract, the owner's agent, DASNY, was required to provide a “Critical Path Method” (hereinafter CPM) schedule, but Plato was obligated to cooperate with Turner in the development, implementation, and updating of the CPM schedule. Section 13.01(A) of the “General Conditions” of the contract provided:

“During the progress of the Work, other contractors may be engaged in performing work. The Contractor [Plato] shall coordinate the Contractor's Work with the work of other contractors in such a manner as the Owner may direct.”

Section 11.02 of the “General Conditions” contained a no-damages-for-delay clause which stated:

“No claims for increased costs, charges, expenses or damages of any kind shall be made by the Contractor against the Owner for any delays or hindrances

[932 N.Y.S.2d 508]

from any cause whatsoever; provided that the Owner, in the Owner's discretion, may compensate the Contractor for any said delays by extending the time for completion of the Work as specified in the Contract.”

Section 13.01(D) provided:

“Should the Contractor sustain any damage through any act or omission of any other contractor having a contract with the Owner or through any act or omission of any Subcontractor of said other contractor, the Contractor shall have no claim against the Owner for said damage.”

Section 20.15 provided that Plato could not cancel the contract based upon DASNY's breach thereof, and waived “any and all rights and remedies to which” Plato “might otherwise be or become entitled to because of any wrongful act or omission” of DASNY, except Plato's right to damages. Provisions were made in the contract for changes and extra work.

In May 1999 Turner provided a schedule to Plato. Plato was to review and make any necessary changes in the schedule. Plato provided its CPM schedule on June 10, 1999.

Delays in the project were attributed to a number of causes. Consolidated Edison Company (hereinafter Con Edison) was installing “chiller lines” to run alongside the site; installation was to take 30 days, but was not completed for six months, interfering with demolition and construction for at least some of that period. Although the contract provided that Plato would have “[c]omplete access to the site after June 1999,” the library was not completely vacated until October 5, 1999. The...