New York State Court of Claims

New York State Court of Claims

A ONE v. THE STATE OF NEW YORK, #2001-005-017, Claim No. 85973


Synopsis


The contractor failed to take necessary steps to prevent erosion from occurring during construction as specified in the contract notes which were provided to Claimant before its bid proposal was prepared and submitted. Accordingly, it cannot recover for excess costs, etc., occasioned by several severe rainstorms which caused erosion that Claimant failed to prevent.

Case Information

UID:
2001-005-017
Claimant(s):
A ONE ENTERPRISES, INC.
Claimant short name:
A ONE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
85973
Motion number(s):

Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Foley & Foley, LLPBy: Robert M. Foley, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Arthur Patane, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 11, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
This action arises out of Contract No. D251928, between Claimant and the New York State Department of Transportation for rehabilitation of the Recharge Basin located on Route 114 in the Town of East Hampton in Suffolk County. The contract provided for Claimant to be paid at unit prices. Claimant alleges that during the course of construction, severe rainstorms caused erosion and significant damage to the work that it had performed. Claimant seeks supplemental payment from Defendant for the extra work it claims it had to perform as a result of these rainstorms.
Procedural History
On September 8, 1992, Claimant filed its claim. Almost six years later, and on the eve of trial, Claimant moved to amend its claim to add new causes of action and to increase the amount of damages sought. Claimant's Motion No. M-57409 was granted by my order filed on September 15, 1998. Trial commenced on April 4, 2000, but due to a medical emergency, was not concluded until August 21, 2001. All the original trial exhibits admitted into evidence were retained at the trial site, the World Trade Center in New York City. Due to the tragedy of September 11, 2001, all the original exhibits were destroyed. The parties have valiantly attempted to replicate these exhibits, but unfortunately not all of them could be reproduced. This decision is, therefore, based on the trial testimony, the exhibits replicated and upon my recollection of the exhibits irretrievably lost.
Trial Testimony
Albert Saggese was the Secretary for A One Enterprises, Inc. (A One), a construction company, which in 1986 bid on a job for the State located on Route 114 in East Hampton, New York. Prior to submitting the bid, Saggese inspected the site and observed some erosion and grass growing on the bottom and the sides of the sump. According to Saggese, A One was to grade the corner of the sump, build concrete walls, buttresses and blocks, and put some bedding material and stone on top of the ground and then asphalt it. The purpose was to direct any water down into the sump and away from the one corner of the perimeter of the sump where water consolidated. A One was the successful bidder on the project.

Work began on the project in August or September of 1986 when A One brought in a survey crew to check the grades and elevations of the corner of the sump where the water tended to consolidate. According to Saggese, the actual grades were different from the grades indicated on the State's plans because some areas had been back-filled after the specifications had been drawn up due to washouts.

Saggese testified that A One had almost all of the forms up for the curb and the wall, when, in November of 1986, a tremendous rainstorm completely buried the sump under a gigantic pool of water. As a result of this rainstorm, the earth under the forms eroded, causing the forms to move and causing the fence, concrete footings and two-thirds of the dirt in the corner of the sump, to wash in. A One was unable to do any further work until the site had been rehabilitated by restoring the walls of the sump and by compacting the dirt at one-foot lifts.

According to Saggese, damage due to washouts occurred on several occasions during November and December of 1986, and in January of 1987. After each of these rainstorms, A One put small berm and straw on the outside of the sump to prevent further erosion and removed the contaminated soil, silt and clay that had washed into the sump from the surrounding farmland. One of A One's subcontractors then carted approximately 600 cubic yards of this contaminated material from the site.

After the removal of the contaminated silt and top soil from the bottom of the sump, A One had to grade the slopes, straighten out the forms and pour the inner concrete wall around the perimeter of the sump. The plan was to build a retaining wall on top of the sump across the northwest corner and to leave openings between the wall and asphalt curbs for an asphalt trough or chute to accommodate the runoff of water from the berm and to direct the runoff water into the sump. Outside the drainage trough, oversized stone was put on top of bedding material (finer stone) to create a spillway. According to Saggese, A One was not paid for approximately 349 cubic yards of bedding material used.

Saggese testified that if the trough did not hold the runoff water, then the water would go into this stone spillway which would prevent erosion from occurring. At the bottom of this spillway, A One built three separate 6 foot by 3 foot concrete buttresses to stop the flow of the water. These concrete structures consisted of an inner and an outer wall. The forms for these structures were bent due to erosion after one of the rainstorms. According to Saggese, the State directed A One to pour extra concrete into voids in the foundation caused by the rainstorms and to place steel footings to prevent further erosion.

In January of 1987, A One prepared and submitted for approval a change order (Exhibit 40) which increased the contract estimate for unclassified excavation by an additional 375 cubic yards. This change order was initially approved by the State's resident Engineer-in-Charge (EIC), Richard Herbert. A revised change order (Exhibit 39), which was prepared by the State and dated March 18, 1987, reduced to 245 cubic yards the amount of unclassified excavation to be added to the contract estimate. Saggese testified that A One was paid for the 455 cubic yards of unclassified excavation originally estimated in the contract and for the 245 cubic yards added to the estimate by the State's revised change order.

Mr. Saggese testified that the severe rainstorms caused erosion of the slopes which took close to one month to restore. A One's seventh cause of action was for the cost of this restoration work, and included the cost of laborers and equipment, together with lost overhead and profit.

The eighth cause of action was for asphalt delivered and used in the troughs running along the side of the sump and used to cover the bedding material. According to Saggese, A One installed 86.52 tons of asphalt and was paid for only 53.01 tons. At a contract unit price of $206.20 a ton, there was a balance of $6,909.76 allegedly owed to A One. Saggese testified that A One was not paid for the additional asphalt delivered because this asphalt was obtained from an unapproved plant.

Mr. Saggese testified that he sent two letters by registered mail, dated November 20, 1986 (Exhibit 48) and August 13, 1987 (Exhibit 49),[1]
to the State requesting payment for the extra work caused by erosion due to the rainstorms.
On cross-examination, Saggese testified that he was familiar with and had read Notes 5 and 6 on page 2 of the contract plans (Exhibit 2) before A One submitted its proposal. Notes 5 and 6 state:
5. The contractor is responsible for taking whatever steps are necessary to prevent erosion from occurring during the construction phase. Should erosion occur, the contractor shall make all necessary repairs as ordered by the engineer.
6. No separate payment will be made for the work described in Notes 1 to 5, but the cost shall be included in the price bid for the various contract items.

Frank Loguidice was a professional engineer, licensed by the State of New York since 1952. He helped to prepare the causes of action enumerated in the claim and amended claim, and testified as an expert witness on Claimant's behalf. According to Loguidice, the first cause of action was for unclassified excavation, which referred to the excavation of the site to grade within the contract limit lines. Item Number 203.01 in the proposal (Exhibit 1), estimated the quantity of unclassified excavation at 455 cubic yards. Loguidice testified that this amount was increased by the January 15, 1987 change order (Exhibit 40) and approved by Herbert, the EIC, and by another State engineer. The amount of the increase was subsequently lowered when the change order was reissued out of Albany (Exhibit 39).

Loguidice testified that A One should have been paid according to the estimate increase set forth on the initial change order of January 15, 1987. In its first cause of action, A One seeks payment for 130 cubic yards of unclassified excavation, representing the difference between the increase to the estimate in the initial change order and the amount of the increase to the estimate in the later change order. Loguidice further testified that A One had been paid for 713.87 cubic yards of unclassified excavation.

On cross-examination, Loguidice testified that this cause of action was based on the January, 1987 change order which increased the estimate of unclassified excavation, but which was never finally approved. Loguidice did not know why this change order was never finally approved, nor did he know how the increase in cubic yards as set forth in this change order was calculated.

According to Loguidice, the second cause of action in the claim was for the removal of contaminated soil from the slopes of the contract area. This soil had to be removed because it became unacceptable fill once it had been contaminated by the top soil from the adjacent properties which washed into the contract area during heavy rainfalls. Loguidice testified he calculated that 525 cubic yards of this contaminated soil had to be removed from the slopes. His calculations relied on documents from a trucking company, Bistrum, indicating that 25 truck loads were removed. Assuming that each truck was a 25 cubic yard truck and assuming that each truck was not completely filled, Loguidice calculated the amount of contaminated soil removed from the slopes to be 525 cubic yards.

On cross-examination, Loguidice referred to the size of the trucks as being 20 cubic yard trucks and testified that he based the size of the truck on invoices sent to A One from the trucking company.[2]

Mr. Loguidice testified that the third cause of action referred to an area of the sump outside of the contract limit lines. In this area of the sump there was an accumulation of contaminated, grass-encrusted soil from wash-ins due to prior rainstorms. Because there was no drainage in the area of this contaminated material, the sump would fill up during the rainstorms which occurred in late 1986 and early 1987. Loguidice calculated that 962.9 cubic yards of this material was removed.

On cross-examination, Loguidice testified that Claimant was not paid for the removal of this material because it was located outside the contract limit lines. He based his calculations on the site plan, the contract drawings, photographs and on the scale measurements of the slopes which he calculated approximately 10 years after the work had been performed.

The fourth cause of action was for excavation of the outer wall, the inner wall, the splash box at the bottom of the sump, and for the manhole. Loguidice calculated that this work involved 91.17 cubic yards, which, at a contract price of $111.00 per cubic yard, amounted to $10,119.87, purportedly owed to A One.

According to Loguidice on cross-examination, A One was paid for excavation of the trench and culvert pursuant to the calculations of Herbert. The amount of damages alleged by A One in its fourth cause of action are based on the separate calculations made by Loguidice.

The fifth cause of action involved the installation of concrete for the inner wall, the outer wall, footings under the inner wall, and for the splash box. Loguidice testified that it was necessary to install footings under the inner wall because there were voids under the wall caused by washouts from the rainstorms. According to Loguidice, it would have been improbable to try to compact the dirt under the forms for the inner wall after a rainstorm because a compaction of 95% was needed under concrete, and this procedure would involve the removal of all of the forms. It was, therefore, more expedient and less expensive to dig holes under the forms and pour concrete for footings to reinforce the wall. Loguidice calculated that 48.7 cubic yards of concrete was installed at a contract unit price of $633.00 for a total of $30,827.10. Of this amount, A One was paid $21,199.17, leaving a balance allegedly owed to A One of $9,627.93.

On cross-examination, Loguidice testified that he never saw the footings because he was retained 10 years after the work had been done and never saw photographs of the footings. Instead, he relied on information given him by Saggese and on the severity of the erosion which only could have been corrected by proper compacting of the slope after the removal of the forms, which was not done, or by the installation of footings.

According to the sixth cause of action in the amended claim, the Defendant ordered the Claimant to excavate portions of the slope and to backfill with bedding material. Loguidice calculated that 349.08 cubic yards of bedding material was installed, at a cost of $85.00 per cubic yard. He did not believe that A One was paid anything for bedding material.

On cross-examination, Loguidice testified that the sixth cause of action was based on information from Saggese and on his review of photographs showing severe erosion caused by the heavy rainstorms which created a big hole in the area of the splash box. This hole was filled in with bedding material, contaminated by the washouts, which had been stockpiled in the area. According to Loguidice, this cause of action was not for total bedding material put in, but rather it was a claim for the bedding material which was stockpiled, but which was never spread. Loguidice did not know if the supplier, A&G Materials, was paid by A One for this bedding material.

Mr. Loguidice testified that the seventh cause of action involved restoration work which had to be done on the slopes after the slopes were washed out due to rainstorms. This restoration work involved labor and equipment. In order to calculate the number of days a piece of equipment was used, Loguidice used the Daily Reports of Herbert, the State's EIC. Loguidice then calculated the union wages for the machine operator, labor foreman and laborers needed to perform this restoration work, plus overhead and profit. According to Loguidice, the total for this cause of action amounted to $28,772.00.[3]

On cross-examination, Loguidice testified that he used factors of 10% for profit and 15% for overhead, which were standard in the industry. He did not know what A One's actual overhead was or what A One's historical profit was.

The eighth cause of action in the amended claim was for the delivery and installation of asphalt. Loguidice testified that the EIC's records indicated that 86.52 tons of asphalt had been delivered, but that the Defendant had only paid A One for 53.01 tons. At a unit price of $206.20 per ton, Loguidice calculated that Defendant owed A One an additional $6,909.76 for asphalt delivered and installed.

Richard Herbert worked for the Department of Transportation and for its predecessor, the Department of Public Works, from 1956 until June of 1992. He was the Engineer-in-Charge (EIC) of the A One project and was responsible for inspecting the work, maintaining the project records and generating correspondence concerning the project. While he was occasionally away from the project site, Herbert witnessed most of the work as it proceeded on this project.

Before any work began, Herbert testified that a State survey crew took numerous cross sections of the area where excavation was to be performed. A second or final set of cross sections was taken after A One had excavated the soil to the depth necessary for the placement of stone. A volume computation in cubic feet was determined by comparing the original with the final set of cross sections. The resulting figure was then converted to cubic yards which was the payment unit specified for Item Number 203.01, unclassified excavation, and payment was authorized to A One accordingly.

On his Inspector's Daily Report for November 18, 1986 (Exhibit H), Herbert noted that the amount of unclassified excavation exceeded the 455 cubic yards estimated for such work under the contract. He prepared a contract change order recommending that the amount of unclassified excavation be increased by 375. At some point, the 375 additional cubic yards recommended by Herbert was reduced to 245 cubic yards. Herbert did not know why his upgraded estimate was changed.

Mr. Herbert testified that Claimant's second cause of action involved material which washed down the slopes onto the site. According to Herbert, A One used machinery to remove this material and to push it back into the washed out areas. In doing so, A One put the material back in layers compacted in one-foot increments in order to restore the slope. Herbert reviewed his diaries and was unable to locate any notation indicating that A One had trucked out any of this material.

Claimant's third cause of action involved the removal of soil which had washed down into the bottom of the recharge basin. Herbert testified that he never ordered A One to remove material from outside of the area of work set forth on the plans.

The fourth cause of action in the claim involved trench and culvert excavation, which was contract Item Number 206.02. In order to calculate payment, Herbert testified that the amount of excavation per linear foot was initially calculated. After the wall was constructed, it was measured and the volume of excavation per foot was multiplied by the excavation per linear foot. The resulting figure was then converted into cubic yards. Herbert's actual calculations for the payment of excavation for the trench and culvert were located in the Inspector's Daily Reports (IDRs) of Herbert (Exhibit H).

The fifth cause of action was for concrete work, and according to Herbert, payment was based on volume in cubic yards derived from the height, width and length of the structure poured. Herbert testified that he observed this work being performed, that no footings were installed, and that no footings were called for under the contract. If footings were to be added to the contract, A One would have had to submit a request in writing explaining why footings were necessary. The design personnel would then review the area and determine the size and location of the footers. Finally, the contractor would receive written approval to add footers and an order on contract would issue increasing the quantity of the work. According to Herbert, none of these steps occurred. Similarly, if rebars were to be added, there would have been an order on contract setting forth the price agreed to between the contractor and the Defendant.

The sixth cause of action involves bedding material with payment based on volume, calculated by measuring the length and width of the area where the bedding material was placed. A theoretical depth[4]
was taken from the contract, taking into consideration an area at the base of the spillway where the depth would be greater to accommodate the large asphalt gutter and spillway combination. Herbert testified that he never instructed A One to bury contaminated bedding material, and that he does not recall A One ever doing so. There were no notes in Herbert's records nor any correspondence regarding the burial of contaminated bedding material.
On cross-examination, Herbert testified that A One was never asked to put in additional bedding material and was cautioned to monitor the amount of stone used.

The seventh cause of action alleges damages for washout repairs. According to Herbert, A One handled washouts by using a bulldozer to push eroded material back up into the gully from where it washed out, doing so in layers. A One would then put up a temporary fence because the existing chain link fence had washed out. On a couple of occasions, A One built a berm and used bales of straw to break the force of the water. Eventually, A One was successful in preventing serious erosion. Under the contract, this cost was to be borne by the contractor. If the contractor believed this to be extra work, the contractor was to notify the Defendant and to keep force accounts. Herbert was never notified that A One considered this to be extra work and no force accounts were ever submitted to him.

The eighth cause of action was for payment of asphalt. According to Herbert, toward the conclusion of the project, the gutter area had to be restored. A One indicated that it intended to get the asphalt from a plant that had lost its approval from the State because of a problem with the automatic batching equipment. Herbert discussed the situation with Saggese before A One's truck left to pick up the asphalt, and suggested another asphalt plant which was approved, and was about 25 miles away. Herbert advised Saggese that A One would not be paid for asphalt from an unapproved plant. According to Herbert, the additional distance to the approved plant would not have caused a loss of temperature in the asphalt because he had transported asphalt from even farther distances without a loss of temperature.

On cross-examination, Herbert testified that A One was not paid for all of the asphalt used because A One placed the asphalt at a thickness greater than indicated on the plans, and because A One used asphalt from an unapproved plant.

Mr. Herbert testified that the work of A One progressed slowly. The work began in October of 1986 and, according to the contract, was to be completed by May of 1987. After approximately eight extensions, the work was finally accepted in 1990.

Early on in the work, before there had been any erosion damage or any significant rainfall, A One removed a portion of an existing gutter which left the underlying soil vulnerable to washouts. At that time, Herbert advised a Mr. Cantolupo of A One of the problems that could occur with a heavy rainfall and suggested that steps be taken to protect the work area. No such steps were taken. Herbert was assured that A One would be out of the area before the first heavy rain. This did not happen and the progress of the work was set back by the need to make repairs necessitated by the erosion which occurred after rainfalls.

On cross-examination, Herbert testified that the first erosion occurred on November 19, 1986, and that A One was making repairs and was taking steps to prevent erosion, including the placement of a berm, between November 19
th and November 21st when a new erosion occurred due to heavy rains, according to his project diary (Exhibit G). On November 25, 1986, Herbert's project diary indicated that A One was repairing the fence surrounding the sump which was damaged by the erosion. Herbert's December 5, 1986, note in his diary indicated that A One constructed an earth berm shield with bales of straw to encircle the erosion damage area. According to Herbert, the berm and straw helped to prevent further erosion, but that was no guarantee, because the berm was just piled-up soil, was not compacted in any way, and therefore had only some resistance to the flow of water. According to Herbert, the initial episodes of erosion were not protected against sufficiently to protect the slope.
Herbert testified that no payment was made to A One for contract Item Number 655.04, frames and grates, because the documentation for the frames and grates was never provided. Herbert did not have the authority to authorize payment without the proper paper work.

Contract Item Number 10607.062226 referred to a steel chain-link fence.[5]
On cross-examination, Herbert testified that A One was not paid in full under this item because the original fence was lost to erosion which A One had failed to protect against. According to Herbert, the fence would not have failed if the site had been protected against erosion. From the beginning of the project, A One was cautioned that there was a possibility of erosion damage, and that something should be done by the time excavation started.
During a pre-construction meeting, Herbert testified that A One was advised that its liability ended when the contract work was accepted. A One was also reminded during this meeting that the contract site was subject to storm water runoff and the threat of erosion damage, and that the site had to be adequately protected during construction and until the acceptance date.

On redirect, Herbert testified that increases in the quantities proposed in the contract could be changed by orders on contract. This procedure begins when the EIC determines that a proposed quantity should be changed or a new item added. The EIC then proposes the new amount he deems necessary. His written proposal then moves up the ‘chain of command' for requisite final approval. Herbert described this procedure as a funding mechanism which allows the contractor to be paid for the quantities of work done. According to Herbert, A One was paid in full for the actual quantities of work performed based on the final quantities as compiled and computed.
Decision
The amended claim contained nine separate causes of action. During and at the conclusion of the trial, I granted Claimant's motions to conform the amended claim to the proof by adding new causes of action. Each cause of action is discussed below separately.
Unclassified Excavation
Claimant's first cause of action seeks additional payment under contract Item Number 203.01, for unclassified excavation. In the contract proposal (Exhibit 1), 455 cubic yards was used as the estimate for unclassified excavation. Claimant bases this cause of action on the January 15, 1987, change order (Exhibit 40), submitted by A One and signed by Herbert, the EIC, which increased the estimate for unclassified excavation by an additional 375 cubic yards for a new estimate of 830 cubic yards. This change order was never finally approved. A revised change order dated March 18, 1987 (Exhibit 39) was issued by the Defendant out of Albany. This later change order reduced to 245 cubic yards the additional amount of estimated unclassified excavation to be added to the estimate in the proposal for a final estimate of 700 cubic yards. In its post-trial brief, Claimant seeks payment for 130 cubic yards of unclassified excavation, the difference between the amount added to the original proposal by the initial change order and the amount added to the proposal by the final change order. At a unit price of $85.00 a cubic yard, Claimant seeks $11,050.00.

Claimant's expert, Loguidice, testified that A One had actually been paid for 713.87 cubic yards of unclassified excavation. The difference between this yardage and the 830 cubic yards which Claimant claims to be entitled to on the basis of the initial change order is 116.13 cubic yards for a total of $9,871.05, the figure asserted by Claimant in the first cause of action in the amended claim.

It is well settled, however, that a unit price contract entitles the contractor to be paid for work completed at the agreed-upon unit price (
Waltech Constr. Corp. v Town of Thompson, 237 AD2d 716), and nothing in A One's contract with the State entitles it to payment based on the maximum estimate of a category of work.[6] Rather, §109-01 of the Standard Specifications of the contract provides that the contractor will be paid for "actual quantities of work performed."
Herbert testified that A One was paid for the quantity of unclassified excavation actually performed and explained that the quantity of unclassified excavation performed was calculated by comparing cross-sections of the area taken before work began, with cross-sections taken after A One excavated the soil. A volume in cubic feet was computed and then was converted into cubic yards. A One does not question the method of computing work performed or the calculations rendered. Indeed, §109-01 of the Standard Specifications provides that the measurements determined by the engineer and the resulting quantities "shall be accepted as final, conclusive and binding upon the Contractor."

Because A One was paid for the amount of unclassified excavation actually performed as provided for under its unit price contract with the State, A One's first cause of action for breach of contract to recover additional payment for unclassified excavation is dismissed.

Removal of Contaminated Material
Claimant's second cause of action is to recover the cost of removing contaminated soil from the slopes. This soil had became unacceptable fill when it was contaminated by the soil from adjacent properties which washed into the contract area as a result of erosion caused by the severe rainstorms which occurred between November of 1986 and January of 1987. Claimant's expert, Loguidice, estimated that 525 cubic yards of contaminated material was removed. Utilizing the unit price of $85.00 a cubic foot for unclassified excavation (Item Number 203.01), Loguidice calculated the cost of the removal to be $44,625.00.

Before bidding on this contract, Saggese, Secretary of A One, inspected the site and observed some erosion and some grass growing in the bottom and along the sides of the sump. Similarly, before bidding on this contract, Saggese read the contract plans (Exhibit 2) and was admittedly familiar with Notes 5 and 6 of these plans. Note 5 provided that the contractor was responsible to take whatever steps were necessary to prevent erosion from occurring, and made the contractor responsible for making all necessary repairs should erosion occur. Pursuant to Note 6, the contractor was not entitled to separate payment for whatever steps it took to control erosion or for repairs in the event erosion occurred.

In its post-trial memorandum of law, Claimant alleges that it should be paid for any extra work caused by the erosion due to rainstorms which occurred after the contract was signed and work had begun, because the State fraudulently misrepresented the erosion problem at the site. There are no allegations, however, in Claimant's amended claim that the State fraudulently misrepresented anything. Moreover, in order to rely on an allegation of fraudulent misrepresentation, a claimant has to prove that the additional work performed resulted directly from the State's concealment of material facts within its possession (
D. A. Elia Constr. Corp. v New York State Thruway Auth., 289 AD2d 665). There is no evidence in the record to support a conclusion that the State concealed anything regarding the condition of the soil or the possibility of erosion. In fact, there is proof that during a pre-construction meeting, A One was reminded that the area was subject to storm washouts and to take steps to prevent erosion damage, and Herbert testified that before any erosion damage or significant rainfall, he advised A One to take steps to protect the work area. A One did not take any steps to protect the area until November 19, 1986, after the first rainstorm and after erosion damage had occurred, when it first began to construct a berm.
Section 102-04 of the Standard Specifications refers to Article 3 of the Agreement whereby the contractor agrees that he has "examined the contract documents and the site of the work and has fully informed himself from his personal examination of the same regarding the quantities, character, location and other conditions affecting the work to be performed. . ." A One can not now make a claim for extra work in repairing erosion damage when it inspected the site and admittedly observed some erosion damage and thus knew, or should have known, that the area was susceptible to such damage, and where the contract specifications explicitly held the contractor responsible for preventing erosion and for repairing any resulting damage (
Savin Bros. v State of New York, 47 NY2d 934; Niewenhous & Co. v State of New York, 272 NY 484; Beltrone Constr. Co. v State of New York, 256 AD2d 992). Accordingly, Claimant's second cause of action for payment for removal of contaminated material is dismissed.
Removal of Soil from Bottom of the Sump
Claimant's third cause of action is for the removal of 962.9 cubic yards of contaminated soil from the bottom of the sump. Claimant's expert, Loguidice, estimated that there were between 4 and 12 inches of material that had to be removed. Using 8 inches as an average, Loguidice estimated the cubic yardage allegedly removed.

In its amended claim, A One alleges that contaminated soil covered the bottom of the recharge basin or sump as a result of the severe rainstorms which began in November of 1986. In its post-trial memorandum, however, Claimant alleges that early photos show grass growing at the bottom of the sump and, thus, concludes that the material removed from the sump was unrelated to the wash-ins which occurred during and after the rainstorms of November 1986 through January of 1987.

During trial, Saggese testified that he inspected the site before A One bid on the contract and observed some grass growing in the bottom of the sump. Surely, had there been almost 963 cubic yards of contaminated material at the bottom of the sump at the time of Saggese's inspection, A One would have insisted that its removal be included in the contract and would have factored its removal into its bid. Moreover, Saggese never testified that the bottom of the sump was covered with contaminated material at the time of his inspection. Rather, Saggese testified that part of the slope washed into and covered the bottom of the sump as a result of the rainstorms which began in November of 1986, and that before A One could do any further work it had to rehabilitate the sump which had just washed out.[7]

Because the credible evidence supports the conclusion that the contaminated material removed from the sump resulted from erosion which occurred as a result of the November 1986 to January 1987 rainstorms, and because, under the contract, repair work due to erosion was the responsibility of the contractor, Claimant's third cause of action is dismissed.
Trench and Culvert Excavation
According to the amended claim, the fourth cause of action for trench and culvert excavation, Item Number 206.02, seeks payment for redoing the trench and culvert excavation which was washed out due to erosion from the severe rainstorms. Loguidice calculated the amount of extra excavation for the trench and culvert to be 91.17 cubic yards for a total of $10,119.87, using the unit price of $111.00 per cubic yard.

Herbert, the EIC, testified that A One was paid for this item by using the payment line in the contract plans to compute the amount of excavation per linear foot of the wall. According to Herbert, once the wall was constructed, it was measured and the linear feet was multiplied by the volume of excavation per foot and converted into cubic yards, which became the quantity for that line of work.[8]

Because this cause of action is for extra work due to washouts and erosion for which A One was responsible under the contract, Claimant's fourth cause of action is dismissed.
Concrete for Structures
Claimant's fifth cause of action is for additional payment for installation of concrete, Item Number 555.0103. Loguidice testified that 48.7 cubic yards of cement was poured for structures. Using the unit price of $633.00 per cubic yard, Loguidice calculated that A One was owed a total of $30,827.10. A One was paid $21,199.17, leaving an alleged balance owed of $9,627.93.
Herbert testified that payment for concrete was based on volume in cubic yards derived from the height, width and length of the structures poured. Basically, the difference between the amount paid by the State and the total amount claimed in the amended claim is the amount Claimant alleges is owed due to the installation of footers.

Saggese testified that A One installed footers under the inner wall. Loguidice testified that footers were the most cost-effective method of reinforcing the wall which was necessary because there were voids under the wall caused by washouts from the rainstorms. The contract did not call for the installation of footers and Herbert testified that no footers were installed.

For the purposes of this decision, I need not resolve the dichotomy between the testimony of Saggese and the testimony of Herbert, who were both credible on this issue. Rather, there is no dispute that the footers, if indeed they were installed, were installed for the purpose of repairing erosion damage to the wall and to prevent further such damage, which was Claimant's responsibility under the contract. Accordingly, Claimant's fifth cause of action for payment for the installation of cement must be dismissed.
Bedding Material
Claimant's sixth cause of action is for bedding material, Item Number 620.08. According to Loguidice this cause of action is not for the total amount of bedding installed, but rather, for bedding which was never spread because it became contaminated by the washouts which occurred after the rainstorms. Loguidice testified that this contaminated material was used to fill in a big hole in the area of the splash box caused by severe erosion as a result of the rainstorms.

According to the amended claim, Claimant was directed by the State to excavate the bottom of the slope and to backfill the area with bedding material.[9]
Herbert, however, testified that he never directed A One to bury contaminated bedding material and could not recall A One ever doing so.
Herbert also testified that A One was paid for bedding material according to volume, calculated by measuring the length and width of the area filled, and by using the theoretical depth from the contract. Claimant does not challenge these calculations, but rather, alleges that payment should be based on the number of truck loads of bedding material delivered which would include the cost of the bedding material contaminated by erosion. In the absence of fraud, bad faith or palpable error, however, the engineer's computation of quantities is final and binding on the contractor (See, §109-01 of the Standard Specifications;
Ardsley Constr. Co. v Port Auth. of N.Y. & N.J., 54 NY2d 876; and Johnson, Drake & Piper v State of New York, 41 Misc 2d 804, affd, 26 AD2d 908). As noted above, the Claimant did not allege fraud, bad faith or palpable error on the part of the State, and the record is devoid of any such proof.
Because Claimant seeks payment for bedding material contaminated by erosion for which it was responsible under the contract, and because the engineer's computations as to quantity are final, Claimant's sixth cause of action is dismissed.
Labor and Material to Restore Grades
Claimant's seventh cause of action seeks payment for the labor and equipment costs incurred to restore the slopes which had washed out due to erosion as a result of the rainstorms. Once again, this is a claim for extra work to repair erosion damage, which under the contract was the responsibility of the contractor. Accordingly, Claimant's seventh cause of action is dismissed.
Asphalt
Claimant's eighth cause of action is for payment of asphalt delivered and installed. It is undisputed that during construction the regular asphalt plant lost its State approval due to problems with its scales and equipment and was unable to place asphalt under the State's specifications. According to Herbert's trial testimony and his Inspection Report of September 21, 1988 (Exhibit H), A One was advised prior to picking up asphalt that this plant had lost its approval and to pick up asphalt from the nearest approved plant. A total of 33.51 tons of asphalt was trucked into the site by A One on September 21, September 22, and October 13, 1988, all obtained by A One from the asphalt plant which had lost its approval. Because this asphalt was from an unapproved plant, Herbert was unable to issue to A One the form needed to obtain payment.

A One offered no proof at trial to establish that the State breached its contract by failing to pay for the asphalt from the unapproved plant. Rather, A One argues that the State allowed this asphalt to be put down and has taken advantage of it being placed. This claim is tantamount to a cause of action for unjust enrichment. However, where, as here, there is a valid and enforceable written contract, a quasi-contractual claim is barred (
Clark-Fitzpatrick, Inc., v Long Is. R. R. Co., 70 NY2d 382). Accordingly, Claimant's eighth cause of action is dismissed.
Costs and Expenses Due To Delays
Claimant's ninth cause of action is for the costs and expenses allegedly sustained by A One as a result of delays due to the severe rainstorms. At the conclusion of trial, Defendant moved to dismiss this cause of action for failure to prosecute. The motion was granted and I dismissed Claimant's ninth cause of action at the conclusion of trial.
Frames and Grates
In its post-trial Memorandum of Law, A One alleges that the State owes it $2,244.00 for frames and grates, Item Number 655.04. During trial, Herbert testified that no payment was made to A One for this item because A One had failed to provide the necessary paper work. On March 15, 1989, Herbert entered a note in his daily project diary (Exhibit G) that he informed Saggese that if A One wanted to be paid for Item Number 655.04 that the necessary certifications had to be provided.

I find no cause of action in A One's claim or amended claim for payment under Item Number 655.04, nor do I find any indication in the record that a motion was made to amend the pleadings to conform to the proof to add such a cause of action. More significantly, I find no evidence in the record to establish any amount of damages under this item. Accordingly, any claim for payment under Item Number 655.04 is dismissed.
Chain-Link Fence
During trial, Mr. Saggese testified that the fence washed into the bottom of the sump after one of the November 1986 rainstorms, and that further damage to the fence occurred after the subsequent storms. Herbert testified that A One secured the fence damaged by the erosion, and that the payment quantity was less than A One requested because the existing fence was lost as a result of erosion which, under the contract, A One was to protect against.

There is no cause of action alleged in the claim or amended claim for payment under Item Number 10607.062226, for steel chain-link fence. While I granted Claimant's motion to conform the pleadings to the proof by adding a cause of action for payment under this item, the record is devoid of any evidence regarding damages under this item. Because the fence was damaged as a result of erosion which was A One's responsibility under the contract, and because A One failed in its burden to prove damages under this item, the cause of action for payment for damages done to the fence under Item Number 10607.062226 is dismissed.
Stone Filling
In the original claim, the fourth cause of action sought payment of light stone filling under Item Number 620.03, but no such cause of action was included in the amended claim. At the end of trial, I granted a motion to conform the pleadings to the proof by adding a cause of action for payment under Item Number 620.03 to the amended claim.

Mr. Herbert testified that the light stone was paid for on the basis of the volume of stone placed. After the stone was placed, the length and width were measured. Because there was no way to measure through the layers of stone to the original ground to measure the actual depth, a theoretical depth from the contract was used to calculate the volume of stone used. Pursuant to §109-01 of the Standard Specifications, the calculations of the engineer are final. A One never questioned the State's method of measurement and never offered any proof to establish damages or entitlement to any damages under Item Number 620.03. Accordingly, the cause of action for payment under Item Number 620.03 is dismissed.

Finally, it must be noted that essentially all of A One's causes of action are for payment for extra work beyond the work specified in the contract documents. The State's EIC testified to the procedures which had to be followed by A One in the event it felt it was entitled to payment for extra work. According to Herbert, these procedures required A One to obtain approved change orders and an order on account authorizing payment for extra work. In addition, §105-14 of the Standard Specifications required A One to deliver to the EIC Force Account Reports itemizing the labor, materials and equipment used in connection with the extra work, including the cost thereof. No such Force Account Reports were submitted by A One and no orders on account authorizing payment for extra work were approved by the State. A One does not address  these notice provisions in its post-trial memorandum of law, offered no proof at trial to establish  that the State prevented it from complying with these provisions, and provided no proof that the State waived compliance with these provisions.

It has been repeatedly held that compliance with such notice provisions is a condition precedent to the commencement of an action for damages (
A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20; Sicoli & Massaro v Niagara Falls Hous. Auth., 281 AD2d 966). A One's failure to comply with the notice provisions[10] of the contract provides a separate basis for dismissing Claimant's various causes of action.
Accordingly, all of the causes of action asserted in the amended claim, together with the new causes of action added by motion during and after trial for an additional payment for fence and stone filling, and the cause of action for payment for frames and grates raised for the first time in A One's post-trial memorandum of law are dismissed. All motions not heretofore decided are now denied.

While public construction contract claims typically require extended pre-trial preparation, this trial also had a protracted tenure of its own due to a necessary witness' health and the destruction of the World Trade Center and this claim's original trial exhibits. Throughout the proceedings and various conferences conducted by the Court, counsel for the Claimant and Defendant both exhibited admirable competence, cordiality, and remarkable patience, traits that I would wish upon all litigants who appear before me. Regardless of the dismissal of all claims herein, I would be remiss in failing to acknowledge the skillful presentation of Claimant's proof.

Let judgment be entered accordingly.


June 11, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




[1] Exhibit 49 is a copy of an unsigned, typed letter which contained hand-written notations. According to Saggese, these notations were written by the typist of the letter. Exhibit 49 was received into evidence with the notations redacted.
[2] The invoices from the trucking company referred to by Loguidice during cross-examination were neither marked for identification, nor entered into evidence. Defendant objected to this portion of Loguidice's testimony on the grounds that it was based on information not testified to by Saggese and because the invoices contained hearsay.
[3] In the amended claim, the seventh cause of action requests damages in the amount of $33,108.64. At trial, however, Loguidice testified that the figure of $28,772.00 was accurate.
[4] On cross-examination, Herbert testified that the theoretical depth from the contract was used to calculate volume for payment because it was not possible to measure down through the layers of stone to the ground in order to measure the actual depth (Trial Transcript [TT], June 8, 2000, p 323).
[5] Defendant objected to testimony during trial regarding a claim for payment of a fence because there was no mention of such a cause of action in the amended claim. Claimant made a motion at trial to conform its amended claim to the proof, and I granted this motion.
[6] The final change order (Exhibit 39) increased the estimate for unclassified excavation from 455 cubic yards to 700 cubic yards. If Claimant's position was correct, then it would have been paid for a maximum of 700 cubic yards. Instead, A One was paid for 713.87 cubic yards of unclassified excavation, on the basis of the work actually performed.
[7] See, TT, April 4, 2000, pp 20 - 21.
[8] See, TT, April 5, 2000, pp 250 - 252. Herbert's calculations for payment of Item Number 206.02 are located in his Daily Reports numbered 9, 13, 20 and 36 (Exhibit H).
[9] Contrary to this allegation, I did not find any testimony by Saggese to the effect that A One was directed by the State to backfill any area with contaminated bedding material.
[10] In its Reply Memorandum of Law, the State referred to §109-05 of the Standard Specifications regarding more specific details to be included in Force Account Reports. Because the State neglected to submit a copy of §109-05, I have not considered it.