The following papers were read on the defendant's motion for summary judgment
dismissing the claim [Motion No. M-61781], and on the defendant's motion seeking
permission to amend its Answer [Motion No. M-62231]: Notice of Motion [Motion
No. M-61781], Affidavit and Exhibits annexed, Memorandum of Law; Affidavit of
counsel in Opposition and Exhibits annexed, Affidavit in Opposition and Exhibits
annexed, Memorandum of Law; Notice of Motion [Motion No. M-62231, Affirmation,
Affidavit and Exhibits annexed, Reply Memorandum of Law; Affidavit in
Opposition. Filed Papers: Claim, Answer.
The Claim alleges the breach of a public improvement contract.
The defendant, with the Court's permission (CPLR 3212[a]), has moved for
summary judgment dismissing the claim on the following grounds:
(1) The claim for damages for underpayment for a quantity of material is
barred by §109-01 of the contract, which states that "actual quantities of
work performed . . . as determined by measurements of the Engineer . . . [are]
final, conclusive and binding" on the claimant.
(2) The claim for damages for delay is barred by Article 13 of the contract,
which states: "The Contractor agrees to make no claim for extra additional costs
attributable to any delays, inefficiencies, or interferences in the performance
of this contract occasioned by any act or omission to act by the State or any of
its representatives . . . ."
(3) The claim for damages for extra work is barred by the claimant's failure
to comply with the provisions of sections 105-14 and 109-05 of the contract
which require the contractor to promptly provide written notice and
documentation of any such claim.
Subsequent to the service and filing of the claimant's opposition to the
motion, the defendant, by Notice of Motion, moved to amend its Answer (CPLR
3025[b]) to assert the affirmative defense that "Claimant failed to furnish
notice of disputed work and further failed to furnish records of alleged dispute
and/or extra work" as required by the contract, and that "By reason of such
failure Claimant has failed to satisfy a condition precedent to claim and/or has
waived its claim herein."
With respect to the claim concerning underpayment for material, it is the
claimant's contention that there was a palpable mistake in the Engineer's
estimate (see, e.g. Yonkers Contracting Co. v New York State Thruway
Authority, 25 NY2d 1), since, according to the deposition testimony of Mr.
Barnes (Exhibit B to Claimant's Affidavit in Opposition), the quantities were
measured on a theoretical, rather than an actual, basis. Although Mr. Steen,
the defendant's Engineer, in his Affidavit annexed to the defendant's motion to
amend its Answer, asserts that the measurements were made in accordance with the
terms of the contract, upon the record presented a factual issue remains
unresolved, precluding summary judgment on this portion of the claim.
Damages for Delay
In support of the claim for damages resulting from delay, the claimant has
submitted the affidavit of Mr. Hrbek, who was the claimant's construction
manager, in which he asserts that the delay was caused by the issuance of orders
by Mr. Steen, the defendant's Engineer for the project, which required the
claimant to engage in additional work so as to satisfy what Mr. Hrbek
characterizes as Mr. Steen's aesthetic concerns. Mr. Hrbek further alleges that
when he informed Mr. Steen that his orders required additional work, Mr. Steen
stated that "the Project would be done his way or our existing requisitions
would not be approved."
It is the claimant's contention that this conduct amounts to one of the
recognized circumstances which can overcome the no damages for delay clause in
the contract. Claimant asserts that at the very least there is question of fact
as to whether Mr. Steen's conduct rises to the level of "gross negligence,
active interference or bad faith . . . [which] would preclude the granting of
the State's present motion."
The Court of Appeals has stated that while such a clause "will prevent recovery
of damages resulting from a broad range of reasonable and unreasonable conduct"
it will "not excuse or prevent the recovery of damages resulting from the
contractee's grossly negligent or willful conduct, i.e., conduct which
‘smacks of intentional wrongdoing' [Kalisch-Jarcho, Inc. v City of New
, 58 NY2d 377, 385]." Corinno Civetta Construction Corp. v City of
, 67 NY2d 297, 305.
By this standard, the claimant's assertions regarding Mr. Steen's aesthetic
concerns do not amount to the kind of conduct which would overcome the no
damages for delay clause. The allegation that the defendant's Engineer made
threats to the claimant that he would not approve existing requisitions unless
the work was done his way, however, does raise a question of fact as to whether
he engaged in bad faith or willful and intentional conduct. "[T]he effect of
the exculpatory clause [can] be overcome only if the qualitative level of
misconduct by the contractee was the equivalent of an intentional wrong
[citation omitted]." Id., at 310. The existence of this factual issue
precludes summary judgment on this portion of the claim.
Finally, it is the claimant's position that the defendant has waived any
defense based upon the claimant's failure to provide notice of a dispute
involving extra work, because it was not raised in the Answer. The only
authority the defendant points to in its perfunctory opposition to this
contention is that "[w]aiver is not one of the enumerated affirmative defenses
required by CPLR §3018(b)." The absence of meaningful discussion of this
issue by the defendant, and its subsequent application to amend the Answer,
suggests that the defendant may not disagree with the claimant's position.
In any event, sections 105-14 and 109-05 of the contract, which require the
contractor to promptly provide written notice and documentation of any claim
under the contract, are conditions precedent to recovery. See, A.H.A.
General Construction, Inc. v New York City Housing Authority, 92 NY2d 20.
Since the claim herein does not allege performance of these contractual
conditions precedent, "the defendant must deny compliance with the condition
precedent specifically and with particularity (CPLR 3015[a]), and the
defendant's failure to assert a specific denial constitutes a waiver of that
defense (see, Igbara Realty Corp. v New York Prop. Ins. Underwriting
Assn., 63 NY2d 201, 218." CNY Mechanical Associates, Inc. v Fidelity
& Guaranty Insurance Company, 212 AD2d 989, 990. See, Siegel,
NY Prac §215, at 337 (3d ed).
Thus, consideration of the defendant's motion for summary judgment dismissing
the claim for extra work is dependent upon permitting the defendant to amend its
"If there is no prejudice to the other side, leave to amend must be freely
given." Siegel, NY Prac §237, at 378 (3d ed). The prejudice necessary to
defeat amendment of a pleading is prejudice resulting from the delay in pleading
the matter. Here, the defendant's motion was made after the claim had been
scheduled for trial on two occasions. In each instance the trial was adjourned
due to the unanticipated unavailability of a witness. The trial is now
scheduled to commence on December 5, 2000. Moreover, the Court's permission for
the defendant to move for summary judgment was given after discussions with
counsel during which counsel for the claimant took the position that the defense
of failure of the claimant to provide notice of disputed work had been waived by
the failure to assert it in the Answer, to which counsel for the defendant, as
noted in the claimant's Affidavit in
responded that it was the
defendant's position that inclusion of the defense in the Answer was not
It is the defendant's contention that the defense has merit, based upon the
assertion that the claimant did not provide any written notice of disputed work,
or any documentation in support of any such claim. Upon the entire record
before the Court, it does not appear that the claimant complied with the
pertinent provisions of the contract. But it is the claimant's contention that
depending upon other circumstances, strict compliance with the notification and
documentation provisions is not necessary. See, e.g., Amadeus, Inc. v State
of New York, 36 AD2d 873, 874 appeal denied 29 NY2d 634 ["in cases
where the State is apprised of the contractor's claim that extra work beyond the
contract was being performed, the State has been precluded from insisting upon
strict compliance with the notice provisions."]. It is the claimant's further
contention that such circumstances exist in connection with this claim, but that
proof of such at trial is dependent upon extensive discovery, including the
possible deposition of other employees of the defendant, which did not take
place because the defendant did not assert the defense.
The logic of the claimant's argument is compelling. Under the circumstances,
amendment, at this time, of the defendant's Answer to assert the defense,
without the possibility of necessary discovery, would result in prejudice to the
claimant. The defendant's motion to amend its Answer must, therefore, be
In accordance with the foregoing, the defendant's motion for summary judgment
dismissing the claim is denied; the defendant's motion seeking permission to
amend its Answer is denied.