Rusciano Const. Corp. v. State

• Decision Date: 15 July 1971
• Docket Number: No. 46425,46425
• Parties: RUSCIANO CONSTRUCTION CORP., et al., Respondents-Appellants, v. STATE of New York, Appellant-Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 21

323 N.Y.S.2d 21

37 A.D.2d 745

RUSCIANO CONSTRUCTION CORP., et al., Respondents-Appellants, v. STATE of New York, Appellant-Respondent.

Claim No. 46425.

Supreme Court, Appellate Division, Third Department.

July 15, 1971.

Berman, Paley, Goldstein & Berman, New York City (John Van Voorhis, New York City, of counsel), for respondents-appellants.

Louis J. Lefkowitz, Atty. Gen. (Richard A. Foster, Delmar, of counsel), for appellant-respondent.

Before HERLIHY, P.J., and STALEY, COOKE, SWEENEY and SIMONS, JJ.

PER CURIAM.

Cross appeals from a judgment in favor of claimants, entered upon a decision of the Court of Claims.

Claimants contracted to construct 2.38 miles of main highway and 10.13 miles of access roads and adjacent structures on Staten Island, New York for a total bid price of $12,696,072.40. This claim arises out of the work on that project. Originally, there were 33 causes of action demanding judgment for approximately four million dollars. Several causes of action were disposed of prior or during trial, leaving 2 through 7, seeking damages resulting from delay and interference and 8, 9, 10, 12, 13, 14, 15 and 16 involving specific items. The State appeals from judgment in favor of claimants in the amount of $1,654,770.08, plus interest, on all of these and the claimants cross appeal with respect to adverse judgments on the 12th and 15th causes of action.

The contract was let September, 1960 with the work to be completed by September 1, 1962. It was not substantially completed until December 31, 1963. The trial court found the State guilty of delay and interference on causes of action 2 through 7 and apportioned 65% Of the increased cost from September 1, 1962 to December 31, 1963 to the State. Specifically, it found the delay was caused by the State's misrepresentation of sub-soil conditions requiring unanticipated excavation of 'unsuitable material' (2 UM), failure to deliver the site of structures #1 and #2 free for work, improper drainage specifications resulting in delay during revision, delay occasioned in the Victory Boulevard area because of the State's failure to warn of underground utility lines, provide detour plans and warn of known unstable soil conditions and failure to free the electric lines and design uses of metal place forms for the bridge structures.

There is no doubt that the site contained areas of sub-soil of 'unsuitable material' (2 UM) known as 'red, silty, till soil', which had to be removed because, although it was stable when dry, it was unstable when wet. At the time of the bid letting, the State had at its disposal not only the 71 test holes indicated on the contract proposal submitted to the bidders, but an additional 657 holes and borings made by the State. The trial court found that the State's failure to make available all soil testing information and failure to provide in the contract plans for the possibility of unstable sub-surface material, contributed to the delay in completing the project. The exculpatory clauses in the contract and in the invitations to bid do not insulate the State from liability where the conditions are not as represented in the contract and inspection by the contractor would not reveal the representations to be false. (Foundation Company v. State of New York, 233 N.Y. 177, 184--185, 135 N.E. 236, 238; Cauldwell-Windgate Company v. State of New York, 276 N.Y. 365, 12 N.E.2d 443.) The State's representative not only knew of the presence of this unsuitable material, but also knew that it was unstable in its wet condition and the State is, therefore, answerable for its failure to put bidders on notice of that condition in the contract proposals.

Excavation of this unsuitable material (2 UM) found on the site resulted in delay occasioned by the necessity of setting up a dredging operation as opposed to the original plan of a drag line to do the excavating. The State's position that this would not delay work in the other areas of project was refuted by the State's engineers who agreed that it was imperative that this unsuitable material be removed by the end of 1960 so that back filling and the embankment could be started in early 1961, thereby giving two paving seasons. It appears from the evidence that the claimant did not intend to start the removal work until December, 1960 in any event and the delay would be from December, 1960 until mid-February, 1961, one and a half months instead of the two and a half months found by the trial court.

The project required that the claimants reconstruct two bridge structures, #1 and #2, and maintain temporary structures during the work to carry the railroad tracks of the Staten Island Railroad Company over two service roads paralleling the new highway. It was the State's responsibility to obtain site clearance from the railroad and Consolidated Edison Company for work on the site. It is claimed that the State's failure in this respect delayed work from October, 1960 to November, 1962, a period of 25 months. Claimant planned to start work at this site March 25, 1961. On June 5, 1961 railroad permission was obtained. On August 18, 1961 the Consolidated Edison power line was removed and the site clear. The delay therafter was occasioned by design difficulties involving the track support and foundation loadings. The track support designs were approved November 6, 1961 and the State concedes responsibility for that delay, but denies it caused delay beyond the completion date. The contract drawings for foundation designs for the structure did not show foundation loading. This was the apparent reason necessitating redesign of those structures. The State disclaims responsibility in this regard and, while it appears the State delayed approval of claimant's plans unnecessarily, it is also clear that the claimants, who were responsible for designing the footings under the contract, did not at any time submit plans and specifications adequate to the task, as requested, until those finally approved November 1, 1962.

It is impossible to determine from the record what effect the delays involved with these structures, located 1000 feet west of the westerly end of the contract paving, had on the overall project.

Revision of incorrect drainage provisions in the contract was not furnished until June 6, 1961 and delayed paving in the Willowbrook area. It was not completed until July of 1963. There was similar delay in the Victory Road area because of the State's failure to issue revised drawings to correct interference with existing gas and water lines, to approve a detour plan and because of the unstable soil conditions.

The delay with respect to the nine bridge structures was minimal. All but two were completed within the original contract date and they were completed on September 16, 1962 and October 24, 1962. Nevertheless this delay was occasioned by the State's failure to approve electrical mounting plans on the structures until June of 1962.

For all these reasons, there can be no doubt the State was responsible to a substantial degree for the 16 months delay in completing the project. The trial court, in making its findings to that effect, accepted audited expense figures for additional costs for supervision, field expense, overhead, equipment and so forth and arrived at a cost occasioned by the delay on the 2nd--7th causes of action and then determined that 65% Of the delay period was attributable to the State and found damages on those causes of action in the amount of $611,698.16.

Obviously, it is impossible to allocate specific amounts of damages to each item of interference or delay. The impossibility of establishing a precise formula for computing damages should not foreclose the claimants' clear right to recover. (Westcott v. State of New York, 264 App.Div. 463, 36 N.Y.S.2d 23.) If the trial court's apportionment of liability can be reasonably supported by the record, it should not be disturbed. (Johnson, Drake & Piper v. State of New...