Tomlinson Const. Co. v. State

• Decision Date: 15 November 1961
• Docket Number: No. 35227,35227
• Citation: 30 Misc.2d 1010,221 N.Y.S.2d 664
• Parties: TOMLINSON CONSTRUCTION CO. Ltd., Claimant, v. STATE of New York and The New York State Thruway Authority. Claim
• Court: New York Court of Claims

Page 664

221 N.Y.S.2d 664

30 Misc.2d 1010

TOMLINSON CONSTRUCTION CO. Ltd., Claimant, v. STATE of New York and The New York State Thruway Authority.

Claim No. 35227.

Court of Claims of New York.

Nov. 15, 1961.

Laurence E. Coffey, Buffalo, John Nicit, Waterloo, and James P. Heffernan, Buffalo, of counsel, for claimant.

Louis J. Lefkowitz, Atty. Gen., Gary Axenfeld, Asst. Atty. Gen., of counsel, for defendant.

BERNARD RYAN, Presiding Judge.

The claimant, Tomlinson Construction Co. Ltd., entered into a contract with the New York State Thruway Authority to furnish work, labor and materials for the construction of a portion of the Niagara Section of the Thruway which crosses Grand Island. The proposal and the contract included seven grade separations or bridges to take the Thruway over existing public highways. It required the driving of cast-in-place concrete piles for the support of the abutments and piers. Great Lakes Dredge & Dock Company became claimant's approved subcontractor for the work of furnishing and driving the cast-in-place concrete piles, the bar reinforcing of structures and the placing of concrete. It prepared its bid on the basis of the information and representations contained in the proposal offered by the Thruway Authority to bidders.

When Great Lakes started driving the approved monotube piles, it ran into trouble; heavy resistance was encountered and resulted in the crushing of the tops of the piles. The work was suspended to give the Thruway's engineers time for consideration of substitute methods of its performance. Various suggestions and counter suggestions were made. Ultimately, the claimant was given the choice of four alternate methods. Only one of these, viz. augering, was feasible in the situation with which claimant was confronted.

Claimant sues for losses sustained by its subcontractor and in turn by claimant due to the delays and the extra costs of performing the work. In separate Findings of Fact which are filed herewith, we find with the claimant on the facts. We apply such well-known cases as Faber v. City of New York, (1918) 222 N.Y. 255, 118 N.E. 609; Foundation Co. v. State (1922) 233 N.Y. 177, 135 N.E. 236 and Young Fehlhaber Pile Co., Inc. v. State (1942) 265 App.Div. 61, 37 N.Y.D.2d 928 to hold the Thruway Authority liable for breach of its contract.

However, after perusal of the testimony we have come to the conclusion that claimant is not entitled to recover the full sum of $96,614.48 demanded because the proof does not sustain certain of the items. We believe that the testimony presented and the facts found in the accompanying decision justify an award of $72,000.00 with appropriate interest.

Claimant has already been paid $176,627.58 which was admitted to be due to it upon the final estimate of the contract work. This payment was made July 1, 1958 pursuant to an order of severance and a judgment of this Court entered thereupon. The direction of this Court at that time reserved for present determination the question of claimant's right to interest upon the sum then awarded. Claimant is entitled to recover the interest computed at $9,734.14. Rusciano & Sons Corporation v. State (1952) 201 Misc. 690, 110 N.Y.S.2d 770, affd. 281 App.Div. 733, 118 N.Y.S.2d 77.

We note a curious situation which confronts us. The claim as filed named in the caption thereof both the State of New York and the New York State Thruway Authority as defendants. The pleading alleged and the requests to find submitted to us by the...