Weber Const Co., Inc. v. State

• Decision Date: 16 March 1972
• Citation: 30 N.Y.2d 631,331 N.Y.S.2d 443
• Parties: , 282 N.E.2d 331 WEBER CONSTRUCTION CO., Inc., Appellant, v. STATE of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 443

331 N.Y.S.2d 443

30 N.Y.2d 631, 282 N.E.2d 331

WEBER CONSTRUCTION CO., Inc., Appellant, v. STATE of New York, Respondent.

Court of Appeals of New York.

March 16, 1972.

Appeal from the Supreme Court, Appellate Division, Third Department, 37 A.D.2d 232, 323 N.Y.S.2d 492.

McClung, Peters & Simon, Albany, for claimant-appellant.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch, Sol. Gen., Richard A. Foster, Asst. Atty. Gen., of counsel), for respondent.

The Court of Claims, John H. Cooke, J., entered a judgment awarding claimant contractor a sum for delays caused by state in road construction project and an order denying State's motion to reopen the trial to conform the pleading to the proof adduced at trial. The State appealed.

The Appellate Division reversed and dismissed the claim. It held that where construction contractor did not fulfil contractual obligation to consult with railroad concerning railroad's work in connection with road project which involved grade crossing, action of State in urging railroad to proceed more rapidly did not make State liable for delay in progress of contractor's work caused by method by which the railroad proceeded and, in absence of any delay being attributable to the State, contractor was not entitled to recover from State on basis of such delay. The contractor appealed.

In the Court of Appeals the claimant contractor urged that the Appellate Division's majority opinion had statements which were not supportable by evidence in record, that claimant had right to attempt to complete contract on or before completion date and that if any act or failure to act upon part of State prevented claimant, then damages should be recoverable by claimant. The State urged that the claimant had failed to prove that the State caused any extraordinary delay.

Order affirmed, without costs.

All concur.