A ONE v. THE STATE OF NEW YORK, #2001-005-017, Claim No. 85973
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.
A ONE ENTERPRISES, INC.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
DONALD J. CORBETT, JR.
Foley & Foley, LLPBy: Robert M. Foley, Esq.
Eliot Spitzer, Attorney GeneralBy: Arthur Patane, Assistant Attorney General
June 11, 2003
See also (multicaptioned
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.
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
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
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
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
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
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
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
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
Mr. Saggese testified that he sent two letters by registered mail, dated
November 20, 1986 (Exhibit 48) and August 13, 1987 (Exhibit
to the State requesting payment for the extra work caused by erosion due to the
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
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
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.
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
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
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
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
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
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
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 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
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
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
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
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
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
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
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
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
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.
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.
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
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
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.
§109-01 of the Standard Specifications of the contract provides that the
contractor will be paid for "actual quantities of work
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
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
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
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
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
, 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
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
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
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
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
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
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.
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
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
Herbert, however, testified that he never directed A One to bury contaminated
bedding material and could not recall A One ever doing
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
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,
, 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
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.
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
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.
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.
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
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
contract provides a separate basis for dismissing Claimant's various causes of
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
HON. DONALD J. CORBETT, JR.
Judge of the Court of
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.
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.
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.
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).
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.
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.
, TT, April 4, 2000, pp 20 -
, 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).
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.
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.