Weber Const. Co. v. State

Citation37 A.D.2d 232,323 N.Y.S.2d 492
Decision Date27 July 1971
Docket NumberNo. 43718,43718
PartiesWEBER CONSTRUCTION CO., Inc., Respondent-Appellant, v. STATE of New York, Appellant-Respondent. Claim
CourtNew York Supreme Court Appellate Division

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 HERLIHY, P.J., and REYNOLDS, STALEY, SWEENEY and SIMONS, JJ.

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 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 claimant, however, made no attempt to contact the railroad either before acceptance of the contract or during progress as to the railroad's proposed or actual progress but relied upon complaints to the State that the railroad was not proceeding fast enough and, additionally, for securing extensions of time from the State for that reason.

The Court of Claims, in substance, found: 'Claimant had complained to the State concerning the railroad and it (the State) should have assumed the responsibility to order compliance with the scheduled work progress.' In our opinion, this conclusion abrogates the terms and conditions of the contract and would make the State liable in contradiction of the terms of the contract itself.

The record establishes that before any work could be done at the grade crossing section it was necessary that the claimant provide an embankment for the railroad detour and complete the highway detour so that highway vehicles crossed the tracks at a new location during this construction.

In July of 1960 a proposed progress schedule was submitted on behalf of the claimant to the State. However, the State after this kept requesting a further schedule and the claimant did not furnish it. Apparently the original schedule called for construction on the new railroad bridge to commence in September of 1960 with the structure and new pavement to be completed by the middle of April, 1961. The railroad detour embankment was done in July of 1960, but the highway detour was not paved until November of 1960 and was not opened until...

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2 cases
  • Paramount Film Distributing Corp. v. State, No. 45976
    • United States
    • New York Supreme Court Appellate Division
    • July 27, 1971
  • Weber Const Co., Inc. v. State
    • United States
    • New York Court of Appeals
    • March 16, 1972
    ...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 Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch, Sol. Gen., Richard A. Foster, Asst. Atty. G......

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