Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Authority

• Citation: 27 Misc.2d 522,212 N.Y.S.2d 263
• Decision Date: 23 January 1961
• Docket Number: No. 34769,C,TIPPETTS-ABBETT-M,CARTHY-STRATTO,34769
• Parties: claimant, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant. Claim
• Court: New York Court of Claims

Page 263

212 N.Y.S.2d 263

27 Misc.2d 522

TIPPETTS-ABBETT-McCARTHY-STRATTON, Claimant, v. NEW YORK STATE THRUWAY AUTHORITY, Defendant.

Claim No. 34769.

Court of Claims of New York.

Jan. 23, 1961.

Sylvester & Harris, New York City, Charles L. Sylvester, New York City, of counsel, for claimant.

Louis J. Lefkowitz, Atty. Gen., Gary M. Axenfeld, Deputy Atty. Gen., of counsel; Grace K. Banoff, Albany, on the brief, for defendant.

Bleakley, Platt, Hart & Fritz, White Plains, and Edward J. Wren, Pleasantville, John C. Marbach and Frederick J. Martin, New York City, of counsel, amicus curiae.

BERNARD RYAN, Presiding Judge.

Claimant is a copartnership of professional engineers. By letter dated February 1, 1953, the New York State Thruway Authority advised claimant that it had been approved for a contract to provide engineering services for supervision of construction of Hudson Section of the Thruway, Tuckahoe Road to Tarrytown. It was told that 'The agreement for such services may be expected to be executed immediately after the award of a construction contract for this portion of the Thruway' and that 'This letter is your authority to proceed with whatever preliminary work is necessary in connection with the services required by such a supervision contract prior to its actual execution' (Exhibit 1).

Claimant accepted the employment by return mail (Exhibit 2) and proceeded to engage upon its duties. However, the formal written agreement was not executed until more than one year had passed. It is dated April 19, 1954 and bears approval by the Attorney General April 27, 1954 and by the director of Thruway finance May 4, 1954 (Exhibit 4). The document was transmitted to claimant May 20, 1954 (Exhibit 3).

In the meantime, claimant was rendering its professional services to the Thruway Authority which on February 18, 1954 awarded to a successful bidder the contract for the construction of the designated Thruway section. This contract provided that work should begin within ten days of the signing thereof and would be completed on or before June 1, 1955 (Exhibit 5).

The contractor did not meet the completion date which was extended four times by the Thruway Authority upon the construction contractor's application. Extensions were granted to September 1, 1955, to October 1, 1955, to December 15, 1955 and finally to September 1, 1956 (Exhibits 12-15). Construction was completed August 30, 1956 and the work was accepted September 26, 1956 (Exhibit 16).

Claimant's agreement with the Thruway Authority did not specify a completion date. It did require claimant to provide engineering supervision and inspection services until the completion and the final acceptance of the work to be done by the construction contractor (Exhibit 4, paragraph 2). The Thruway Authority agreed to pay and the claimant agreed to accept as full compensation for its services four per cent of the final construction costs, less certain miscellaneous items which are not of concern in arriving at a determination of the issues presently before us.

Except for accrued interest upon certain sums, claimant has been paid by the defendant voluntarily, or as the result of a prior judgment of this Court, all monies due it as audited in the final estimates at the four per cent rate. But it herein demands damages in the sum of...