New York State Court of Claims

New York State Court of Claims

TOMPKINS v. THE STATE OF NEW YORK, #2002-005-026, Claim No. 78016


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.By: James A. Resila, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Cornelia Mogor, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 16, 2003

Official citation:

Appellate results:

See also (multicaptioned case)

This claim, and this part of the trial of this claim, have a unique and protracted history which requires a brief retrospective for the sake of clarity. For syntactical ease, this matter may be best referred to as the Tougher claim, not a characterization of the difficulty in bringing this matter to closure, but rather the name of a sub-contractor of the Claimant with which a liquidating agreement has now been presented and admitted into evidence as Exhibit 131. After the original trial of this matter, in a Memorandum Decision[1]
dated December 31, 1998, I held the State of New York liable in damages and made an award in favor of E. W. Tompkins Co., Inc., albeit declining to award any damages for the claim of Tougher Industries, a principal sub-contractor of Claimant, due to the lack of proof of a "liquidating agreement."
A judgment dated February 16, 1999, was entered in which E. W. Tompkins Co., Inc.,[2]
was awarded the sum of $337,069.00 with interest from August 18, 1988 to December 31, 1998 in the sum of $314,569.64, and additional interest from December 31, 1998 to February 16, 1999 in the sum of $7,330.93, for a total sum of $658,969.57. An appeal was then taken from that judgment, and, during the pendency of that appeal, Tompkins and the State of New York settled the Tompkins claim.
Claimant made a motion with respect to the Tougher claim and, in a decision and order in Motion No. M-59594, signed on June 6, 2000, and filed on June 19, 2000, I granted the relief sought pursuant to CPLR 5015(a)(2), and re-opened the trial to allow Claimant to present "newly-discovered evidence" with respect to the Tougher claim. As part of that determination, I also held that:
My denial of the claim was based upon the absence of the liquidating agreement, not the quantum or strength of the proof submitted. Had I found the Tougher claim to be completely without merit or support, I would have rejected it on substantive grounds, as well as jurisdictional ones. I do not here assess the proof relative to the Tougher claim, but I do find that existence of the agreement will probably produce a different result with respect to the Tougher claim.
The State of New York filed an appeal from that order. The Appellate Division, Third Department, in an order dated July 5, 2001, held that I had not abused my discretion in granting the motion, and affirmed the order, without imposing costs (285 AD2d 694).

In due course, this matter proceeded to trial where, as noted above, the liquidating agreement was admitted into evidence. In simple terms, the liquidating agreement allows the sub-contractor who is not in privity with the owner, or here the State, to make its claim through the prime contractor.

At the trial,
inter alia, I dismissed Claim No. 100723, which had been filed by Claimant after my original trial decision. I decided that the Tougher claim need not be retried, ab initio, and recited on the record each of the exhibits admitted into evidence at the original trial on behalf of both Claimant and Defendant. I advised the parties that I would rely upon all the admitted exhibits in rendering the instant decision. Furthermore, again on the record, I directed the four volumes of trial transcript of the original trial consisting of 599 pages from July 21 to July 24, 1997, respectively, be marked into evidence as Court Exhibits 1, 2, 3 and 4. I also recited on the record that the stipulations of the parties made the prior trial the law of the case. The parties submitted memoranda of law in support of their respective positions.
Claimant had a contract with the State to perform all HVAC (heating, ventilating and air conditioning) work at Woodbourne Correctional Facility (Woodbourne). Tougher Industries was hired as a sub-contractor by Claimant to do the sheet metal and insulation work related to the general HVAC contract. Claimant relies on my findings in the original trial, including the Defendant's failure to properly coordinate the work at Woodbourne, failure to approve and implement the "CPM" (critical path method), and failure to extend the time to complete the work, thus causing an acceleration of the work to be done. Claimant, relying upon the damages formula enunciated in
Gray, Inc. v State of New York, 251 AD2d 728 (cited at Page 12 of my original trial decision), seeks damages in the total amount of $293,124.00, which amount includes actual net labor expenses, insurance and fees, travel, room and board, less change orders and the actual amount paid, and inclusive of a 6.15% factor for overhead and profit. Additionally Claimant seeks statutory interest, at 9% annually, from August 18, 1988.
The Defendant raises objections on jurisdictional and substantive grounds. The Defendant's most vociferous objection relates to Exhibit 130, which purports to show estimated labor to be required at the work site to complete the contract, if the job were to be timely commenced. The State's objection highlights purported weaknesses in the probative weight and value to be assigned to this documentary proof, among other reasons, because it included shop labor (as opposed to labor at the job site), winter work, etc. I find sufficient credibility in using Exhibit 130 as the starting point of Tougher's claim (see my discussion on this subject also on Page 12 of my original trial decision).

Therefore, I have relied,
inter alia, upon Trial Exhibits 59, 98, 101, 103, 108, and 130, the "very, very credible" testimony of Colloton (See Page 4 of my original trial decision), and that of Reiter (Claimant's comptroller), whose testimony in calculating labor costs, including job site supervision, travel, room, board, payroll taxes and insurance, benefits and the wage rate, I found fair and reasonable (See Page 13 of my original trial decision), buttressed by the deposition testimony of William C. Royer, Jr., (admitted into evidence without objection as Exhibit 122).
This decision thus remains consistent with my earlier decision, where I sustained the cause of action for added expenses to the Claimant for the delay and subsequent demand for acceleration of work by the Defendant. Given the stipulation of the parties and indeed the settlement of the original Tompkins claim, the methodology of calculation used in the original trial decision is part of the law of the case. Accordingly, based upon all of the above, and applying the same methodology of calculation of damages as I did in the original trial decision, i.e., reasonable anticipated labor expenses minus actual labor expenses, and in consideration of the arguments propounded by the parties, I find that the total damages sustained by Claimant in the Tougher Industries claim for sheet metal and insulation costs to be a net total amount of $185,000.00, inclusive of all excess labor costs, insurance and fees, travel, room and board, etc.

In examining entitlement to interest on this award, I have rejected the Defendant's argument that I utilize the date of the original trial as the trigger of a suspension of interest, but instead have used the date of signature, the date upon which I decided that I had no jurisdiction to determine the Tougher claim. Thus I exclude the period from December 31, 1998, the date of my original trial decision herein, to July 5, 2001, the date of the Third Department's affirmance of my order permitting the introduction of the liquidating agreement herein (
supra, 285 AD2d 694). Accordingly, I award interest as follows: from August 18, 1988 to December 31, 1998, and from July 5, 2001 to the date of this decision and order, with appropriate interest thereafter pursuant to statute.
All motions heretofore undecided are denied. Let judgment be entered accordingly.

June 16, 2003
Rochester, New York

Judge of the Court of Claims

  1. [1]That Memorandum Decision is incorporated herein and made part hereof, and is appended hereto as an Appendix.
  2. [2]Again, for ease of reference, I will denominate the original decision (Appendix 1) and judgment as the Tompkins claim or the Tompkins decision.