Weber Const. Co. v. State, No. 43718

• Court: New York Supreme Court Appellate Division
• Writing for the Court: PER CURIAM; SWEENEY; SWEENEY
• Citation: 37 A.D.2d 232,323 N.Y.S.2d 492
• Decision Date: 27 July 1971
• Docket Number: No. 43718
• Parties: WEBER CONSTRUCTION CO., Inc., Respondent-Appellant, v. STATE of New York, Appellant-Respondent. Claim

Page 492

323 N.Y.S.2d 492 37 A.D.2d 232 WEBER CONSTRUCTION CO., Inc., Respondent-Appellant,
v.
STATE of New York, Appellant-Respondent. Claim No. 43718. Supreme Court, Appellate Division, Third Department. July 27, 1971.

[37 A.D.2d 233] McClung, Peters & Simon, Albany (Homer Peters, Albany, of counsel), for respondent-appellant.

Louis J. Lefkowitz, Atty. Gen., Albany (Ruth Kessler Toch, Albany, and Richard A. Foster, Delmar, of counsel), for appellant-respondent.

Before [37 A.D.2d 236] HERLIHY, P.J., and REYNOLDS, STALEY, SWEENEY and SIMONS, JJ.

[37 A.D.2d 233] PER CURIAM.

This is an appeal by the State from a judgment of the Court of Claims, entered December 2, 1970, awarding claimant $107,089.80, plus interest, for delays and interference caused by the State, and cross appeal by claimant (1) from that part of said judgment which dismissed items 2 and 5, and (2) from an order, entered January 7, 1971, which

Page 493

denied claimant's motion to reopen the trial for the purpose of making a motion to conform the pleading to the proof adduced at the trial.

The contract was for the reconstruction of Fuller Road in Albany from Western Avenue to Central Avenue. The section in and about Washington Avenue north to Railroad Avenue included a grade crossing project, under order of the Public Service Commission, where the tracks of the New York Central Railroad cross Fuller Road. The contract was entered into on June 1, 1960 and provided for completion by December 31, 1961 but final acceptance by the State was January 8, 1963.

The claim was premised and tried upon the theory that the railroad failed to properly progress the relocation of the tracks, first to the temporary detour area and then from the detour area to the new bridge and that the State failed to force or take steps to induce the railroad to complete its work in a more rapid fashion.

A paragraph of the contract taken from the Public Works specifications provided, Inter alia, that the contractor shall obtain the written approval of the Chief Engineer of the railroad company with reference to the details and the methods to be employed as to the construction, et al., and which should be complied with before the beginning of actual construction. It further provided: 'The Contractor shall include in his unit proces bid for this work all the costs of these requirements including any expense occasioned by delay or interruption of his (its) work by reason of the operation or maintenance of the railroad facilities.'

It is not disputed that the claimant knew, prior to bidding and acceptance of the contract, that the completion date of December 31, 1961 was dependent upon its compliance with the terms and conditions of the contract which included the necessary written approval of the railroad company. The [37 A.D.2d 234] claimant, however, made no attempt to contact the railroad either before acceptance of the contract or during progress...