Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Authority, TIPPETTS-ABBETT-M

Decision Date07 May 1963
Docket NumberTIPPETTS-ABBETT-M,R,CARTHY-STRATTO,No. 34769,34769
Citation239 N.Y.S.2d 732,18 A.D.2d 402
Partiescespondent, v. The NEW YORK STATE THRUWAY AUTHORITY, Appellant. Claim
CourtNew York Supreme Court — Appellate Division

Louis J. Lefkowitz, Atty. Gen., Albany, for appellant. George H. Rothlauf, Asst. Atty. Gen., and Paxton Blair, Albany, of counsel.

Sylvester & Harris, New York City, for claimant-respondent, Alvin McKinley Sylvester, and Charles L. Sylvester, New York City, of counsel.

Bleakley, Platt, Hart & Fritz, White Plains, and Edward J. Wren, Pleasantville, for Chas. H. Sells, Inc., amicus curiae, John C. Marbach, and Frederick J. Martin, White Plains, of counsel.

Before BERGAN, P. J., and GIBSON, HERLIHY, REYNOLDS and TAYLOR, JJ.

BERGAN, Presiding Justice.

Claimant entered into a contract with the Thruway Authority to provide engineering services, including detailed supervision, related to the performance of a construction contract. The date of completion expressed in the prime contract was June 1, 1955. With the approval of the Thruway Authority the completion date was extended several times, ultimately until September 1, 1956.

Claimant contends that these extensions constituted a breach by the Thruway of its engineering contract and has had judgment in the Court of Claims. We take a different view and hold that the Authority did not breach the claimant's engineering contract by extending the time of the prime contractor's performance.

We look first to the direct contractual obligation between claimant and the Authority. Although the agreement between claimant and Authority stated that it should be deemed to include 'the agreement' between the Authority and the prime contractor, there was no stated date within which claimant was to perform the supervisory contract; and no agreement by which the Authority undertook to assure claimant that the prime contractor would finish its work on June 1, 1955.

It is manifest that all the provisions of the 'agreement' between the prime contractor and the Authority were not literally binding on claimant in relation to the Authority or Authority in relation to claimant. Claimant, for example, did not agree to build the road by June 1, 1955 or to build it at all; and it is clear that this obligation and the date of its performance were not expressly binding between the Authority and claimant.

The main basis of the claim is that the Thruway, which had means of punitive pressure on the prime contractor, was obligated to exert it so that the prime contract be completed within the stated time, rather than fifteen months later, and that claimant was damaged by this failure.

Although there is no such express provision in the agreement between claimant and Authority, we assume that the Authority could not unreasonably delay the work to the claimant's damage. That is the basis of the Court of Claims decision; but on this issue claimant had the burden and the burden has not been met.

The Thruway had various means of punishing the prime contractor for failure to perform on time. It could have cancelled the contract, or refused to grant extensions which would have terminated payments and stopped the work. Claimant does not argue that it should have gone this far.

It could also, under the terms of the prime contract, have imposed on the contractor 'engineering and inspection expenses incurred' by the Authority 'where the work has been unduly delayed by the contractor because of unwarranted reasons, inefficient operation, or for any other reason for which the Authority determines the contractor liable.'

Claimant seems to contend that this right to penalize the prime contractor amounted to a duty of the Authority owing to claimant to impose the penalties and to pay them to the claimant. No such obligation can be spelled out of the prime contract or by any incorporation of its relevant provisions by reference in the contract with claimant.

It was a power to penalize based on 'unwarranted reasons' for delay or 'inefficient operation'; and to recover for breach of an engineering contract because of a failure or refusal of the Authority to exercise this kind of power, claimant has the heavy burden of showing that no possible exercise of reasonable judgment or fair dealing with the prime contractor would have excused the Authority from imposing the penalty.

This burden has not only not been met, but the whole record shows that in large part the delay was...

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7 cases
  • Andron Constr. Corp. v. Dormitory Auth. of State
    • United States
    • United States State Supreme Court (New York)
    • April 22, 2016
    ...dealing” supported DASNY's refusal to extend the completion date (Tippetts–Abbett–McCarthy–Stratton v. New York State Thruway Authority, 18 A.D.2d 402, 404, 239 N.Y.S.2d 732 [3d Dept 1963], affd 13 N.Y.2d 1091 [1963] ). Further, as the party seeking to avoid application of the exculpatory c......
  • Chas. T. Main, Inc. v. Massachusetts Turnpike Authority
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 4, 1964
    ...is supported by the result in Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Authority, 18 App.Div.2d (N.Y.) 402, 239 N.Y.S.2d 732, modifying 38 Misc.2d (N.Y.Ct.Cl.) 30, 237 N.Y.S.2d 167 (as to the third cause of action) upon facts very similar to those in the present case, aff......
  • Norelli & Oliver Const. Co. v. State, 43893
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 1968
    ...with the (plumbing) contractor would have excused the (State) from imposing the penalty.' (Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Auth., 18 A.D.2d 402, 404, 239 N.Y.S.2d 732, 735, affd. 13 N.Y.2d 1091, 246 N.Y.S.2d 409, 196 N.E.2d Judgment modified, on the law and the f......
  • Forest Elec. Corp. v. State, 43376
    • United States
    • New York Supreme Court Appellate Division
    • July 23, 1968
    ...the present record justified the substantial award against the State of New York. (See Tippetts-Abbett-McCarthy-Stratton v. New York State Thruway Auth., 18 A.D.2d 402, 404--405, 239 N.Y.S.2d 732, 734, aff'd 13 N.Y.2d 1091, 246 N.Y.S.2d 409, 196 N.E.2d 64; Websco Constr. Corp. v. State of N......
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