New York State Court of Claims

New York State Court of Claims

ACCADIA v. THE STATE OF NEW YORK, #2002-015-226, Claim No. 103400, Motion No. M-64047


Claim by paving contractor to recover additional costs upon substitution of material deemed waived by contractor's failure to comply with notice and reporting requirements of contract which are deemed conditions precedent to recovery

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:
Gresens & Gillen LLPBy: James W. Gresens, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Reuben Goldwaser, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 6, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for summary judgment seeking an order dismissing the claim upon the grounds that claimant waived its claim by failing to satisfy a contractual condition precedent to suit is granted. The claim seeks to recover money damages for an alleged breach of a contract[1] between Accadia Enterprises, Inc. (Accadia) and the New York State Department of Transportation (DOT) for the reconstruction and resurfacing of a 6.7 kilometer stretch of routes 62 and 324 in the Towns of Amherst and Tonawanda, Erie County. The claim alleges that it arose on October 13, 2000 when the State mailed final payment to claimant and asserts, specifically in paragraphs "6" and "7" that:
6. The nature of Accadia's claim is for additional compensation for labor and materials used to repair, re-do and repeat certain contract work as the result of the product failure of Superpave Hot Mix Asphalt Courses, 9.5 mm, which was required to be used by the contract and Project specifications.

7. Upon information and belief, between on or about August 19, 1999 and August 30, 1999, the aforesaid Superpave Hot Mix Asphalt failed, after properly being applied by Accadia to that part of the Project on Sheridan Drive (Rt. 324) roughly between Eggert Road and Bailey Avenue. Upon information and belief, the failure of the aforesaid specified product was due to the defective nature of the product specified by the State. As a direct and proximate result of the aforesaid defects in the product and the State's specifications, Accadia sustained damages, and its material supplier claims to have sustained damages, as hereinafter alleged.
The claim demands damages in the amount of $209,391.77 for "labor, fringe benefits, equipment and testing used to repair, re-do and replace the aforesaid defective products." It also seeks $215,024.77 in damages claimed by Accadia's material supplier, Redland Quarries NY, Inc. a/k/a/ LaFarge Corporation "for materials consisting of paving and road construction materials, stone, gravel, asphalt and aggregate." Total damages claimed are $424,416.54 plus interest.

The claim was filed on November 16, 2000 and issue was joined by the service of an answer which was filed on December 21, 2000. By letter dated December 26, 2000 the State withdrew an affirmative defense which had alleged that the claim had not been filed in conformity with Court of Claims Act § § 10 and 11. It allowed to stand, however, an allegation that the claim was waived by virtue of claimant's failure to comply with the notice and disputed work provisions of the contract and, therefore, Accadia failed to satisfy a condition precedent to suit.

Claimant served discovery notices upon the Attorney General to which the State belatedly responded by making the instant motion for summary judgment seeking dismissal of the claim as a matter of law.

The following undisputed facts were considered by the Court with regard to this motion:

The subject repaving/reconstruction agreement was entered into on February 23, 1998 and included a scheduled completion date of December 31, 1999.[2] It called for, among other things, the use of a material identified as "Superpave Hot Mix Asphalt 37.5 mm, 25.0 mm And 9.5 mm NOMINAL MAX. SIZE" (Defendant's Exhibit A). Only the last of these (i.e., 9.5 mm) is the subject of this claim. Both parties were aware that the repaving specification was a "performance based specification in which the Contractor is responsible for compacting the pavement within a specified density range" determined pursuant to available written instructions (see Defendant's Exhibit B). As part of the performance based aspect of the contract the contractor's work was subject to inspection. In conformity with the inspection process claimant laid the specified 9.5 mm Superpave mix in certain test areas "without any problems" (see Marinaccio affidavit, paragraph 5) and the State accepted all test sections. Thereafter, claimant proceeded with the project and encountered unexplained difficulty in adhering the 9.5 mm Superpave mix to the prepared road surface despite the use of several different rolling methods. The Superpave mix was tested for compliance with the specifications and was found to be compliant (Marinaccio affidavit, paragraph 7) but adherence problems continued. The Engineer in Charge (EIC) of the project (Jack R. Carone) alleges in his supporting affidavit that the claimant continued to experience difficulty in adhering the product until approximately August 31, 1999 when "after a combination of changed roller methods and a newly approved 12.5 mm product . . . the contractor was able to achieve greater although not complete success in emplacing [sic] the top course" (Carone affidavit, paragraph 10).

The use of the 12.5 mm product had been requested by Accadia in a letter of its president dated September 10, 1999 (Defendant's Exhibit C). That letter stated: "We are hereby requesting the specified asphalt concrete superpave 9.5 mm top, Item 18403.9561 M, be changed to 12.5 mm top. This would be at no cost to the NYSDOT." It is alleged that the claimant's requested change was approved by the State and that the Superpave asphalt operations were acceptably completed by October 1999 (Carone affidavit, paragraph 11). After the completion of the Superpave project claimant, by letter to the EIC dated December 7, 1999 (defendant's Exhibit D) requested an equitable resolution of some $500,000.00 in damages allegedly attributable to the use of the 9.5 mm Superpave mix. The letter requested a meeting with appropriate personnel at DOT and referenced an attached letter to claimant's president from its supplier dated October 28, 1999 (also defendant's Exhibit D) which acknowledges that the performance issues relative to the 9.5 mm Superpave mix "were never clearly identified or resolved." The EIC responded to Accadia by letter dated December 21, 1999 in which he determined that as a performance based specification Accadia was responsible for the end result and pointed out that Accadia had, in fact, requested the specification change from 9.5 mm. He further determined that the State was not "responsible for the financial hardships that occurred" (defendant's Exhibit E).

No proof was offered on this motion tending to show that claimant appealed the EIC's determination to the Regional Director and/or to the Commissioner of DOT as provided in the disputed work provisions of section 105-14 of the Standard Specifications incorporated by reference into the parties' agreement. On the motion claimant asserts that because the State's specification of the 9.5 mm Superpave mix was defective in some non-specified manner that the dispute resolution provisions of the standard specifications are inapplicable.

In the first instance claimant argues that the motion should be denied as premature since it was made in advance of discovery. Since that issue could be dispositive of the motion the Court has chosen to address the issue of the motion's prematurity before considering its merits. Although it has been said that "[s]ummary judgment is not justified where the existence of essential facts depends upon knowledge exclusively within possession of the moving party and which might well be disclosed by cross-examination or examination before trial" (Baldasano v Bank of New York, 199 AD2d 184, 185; CPLR 3212 [f]; Terranova v Emil, 20 NY2d 493), the absence of discovery does not necessarily preclude summary judgment. Where a party seeking summary judgment in an action grounded in contract supports the motion by documentary proof sufficient to establish its prima facie entitlement to summary judgment, the burden of coming forward with evidentiary proof in admissible form sufficient to raise a material issue of fact or a reasonable excuse for failing to do so shifts to the non-moving party and summary judgment may not be avoided by unsupported speculation "that some evidence may come to light during discovery" (Grimm Bldg. Materials Co v Freeman Excavating, 194 AD2d 857; see also, Ramage v Feore, 163 AD2d 286).

The issue of the claimant's outstanding discovery demands is raised solely in paragraphs 6-12 in the affidavit of Joseph J. Manna, (claimant's counsel). In paragraph 12 he states that "discovery responses and depositions may be necessary if the court somehow determines that the notice provisions relied upon by the State apply to this claim." The only other reference to this issue is contained in the claimant's memorandum of law in which the author states:
Discovery is needed because Accadia expects to obtain facts from the State which will corroborate Accadia's contention that prior written notice was not required and that Accadia never waived its breach of contract claim. In particular, Accadia expects that the State's employees will testify concerning various conversations that took place at the project site. These conversations are relevant to: (1) whether the State waived the contract's prior written notice requirements; and (2) the State's waiver defense.
Nowhere does the claimant assert that the facts concerning the State's alleged waiver of the contractual notice provisions are exclusively within the knowledge and/or possession of the defendant. Presumably, the conversations occurring at the contract site referenced in the above portion of claimant's memorandum of law involved individuals employed by Accadia. The only proof submitted in opposition to the motion other than counsel's affirmation is the affidavit of Paul Marinaccio, the President of Accadia Enterprises. Mr. Marinaccio's affidavit does not assert, much less establish, that conversations concerning the contract's notice provisions took place. The claimant has failed to establish that the facts sought to be discovered are within the defendant's exclusive knowledge or possession. Nor has claimant presented any proof tending to show that "discovery might reveal the existence of relevant evidence" (Halliday v Norton Co., 265 AD2d 614, 617). Finally, if such speculation "without any concomitant evidentiary support" set forth in an attorney's affirmation in opposition to a motion for summary judgment is deemed insufficient to defeat the motion (see, Ramage v Feore, 163 AD2d 286, supra) then clearly its presentation in a memorandum of law must also be found insufficient for that purpose. Under the particular circumstances of this case the motion grounded upon a contractual condition precedent to suit is not found to be premature.

The State appears to have premised its motion principally upon claimant's alleged failure to comply with the contract's dispute resolution and disputed work provisions (see, § 105-14 et seq. of Standard Specifications of the contract attached to defendant's memorandum of law[3]) and Accadia's alleged failure to assert a claim for extra compensation pursuant to Standard Specifications § 109-11 (not submitted) in response to the Regional Construction Engineer's letter of April 7, 2000 (defendant's Exhibit F) prior to the preparation of the final agreement.

In an attempt to eliminate "bulkiness" defense counsel failed to include the complete text of the Standard Specifications (see paragraph "2" of Goldwaser affidavit in support of motion). Such failure precludes the Court's consideration of Accadia's alleged non-compliance with §109-11 referenced in the preceding paragraph and limits the Court's review to the issue of whether the dispute resolution and disputed work provisions of the specifications (§ 105-14) apply to this claim and if so whether such provisions establish an unsatisfied condition precedent to suit.

Article 2 of the parties' agreement dated February 23, 1998 provides as follows:

The Contract (and Contract Documents) shall be deemed to include the advertisement for proposals; the contractor's proposal; the Schedule for Participation By Disadvantaged Business Enterprise Participation goals; the agreement; the "Standard Specifications" including all addenda thereto referred to above; the plans; any addenda and/or amendments to specifications if the same are issued prior to the date of receipt of proposal, and all provisions required by law to be inserted in the contract whether actually inserted or not.

Accadia argues on the motion that § 105-14 of the specifications applies only to "time-related disputes," "acceleration disputes" and "extra work claims" none of which it is contended are at issue here (see Manna Affidavit, paragraph 14). Instead, claimant alleges that its claim is based upon "the State's breach of contract by failing to provide adequate and proper product specifications" (see Manna affidavit, paragraph 15).

Contrary to claimant's contention, the Court finds that the contract's notice and documentation provisions apply whether the cause of action asserted is considered as seeking additional compensation for extra work, disputed work, or delay damages (see, MRW Constr. Co. v City of New York , 223 AD2d 473). Moreover, "in the absence of a clear basis upon which damages are sought to be recovered, the Court will impose the more stringent notice requirements applicable to the recovery of damages for extra work" (Gemma Constr. Co. v City of New York, 246 AD2d 451; 456). Recently, the Third Department, addressing a damage claim predicated upon the State's issuance of a change order allowing another contractor to use coarser types of fill than had initially been specified thereby making the claimant's work more difficult and time consuming, upheld the lower court's denial of recovery based upon claimant's failure to comply with the contract's notice provision (J & K Plumbing & Heating Co. v State of New York, 235 AD2d 751, 753; see also Martin Iron & Constr. Corp. v Howell Co., 242 AD2d 608).

In the instant case § 105-14 of the standard specifications lays out the purpose of the contract's dispute resolution provision and provides that it may "be undertaken at any time from the contract award to the submission of the final estimate for payment by the Office of the State Comptroller." It further provides:
If the Contractor considers its disputes unresolved after following the requirements of this Section then at any time prior to the submission of the final agreement for payment to the Office of State Comptroller, the Contractor may request in writing a meeting with the Commissioner, or his/her designated representative, to review any outstanding dispute or items of a dispute that have not been previously resolved to the satisfaction of the Contractor through the dispute resolution process. If the contractor fails to comply with the requirements of this section, any claim of the Contractor with respect thereto shall be deemed waived.
The claimant has put forth only the most conclusory of statements in asserting that the notice provisions of § 105-14 are inapplicable to the dispute at issue here and at no point refers to the language of the contract or standard specifications to support its contention. Absent proof that this claim lies outside the requirements of section 105-14 of the specifications the Court rejects claimant's argument in that regard and focuses its attention on the notice requirements contained therein with reference to extra work. These requirements, which are set forth throughout subdivision C of § 105-14, require written notice be given to the Engineer within 10 days of receipt of the order or direction requiring extra work or work allegedly exceeding the requirement of the contract's provisions. The contractor within 10 work days of receipt of the Engineer's decision shall notify the Regional Director in writing. If the dispute is not resolved to the contractor's satisfaction by the Regional Director, the contractor shall notify the Commissioner of the Department of Transportation in writing within 10 days of receipt of the Regional Director's decision with copies to the Engineer and Regional Director. The Commissioner, or his/her designated representative, shall make a finding and notify the contractor in writing. Section 105-14 (C) also requires the contractor to progress with any disputed work and requires the contractor and Engineer to keep daily records and make reports of all labor, material and equipment used in connection with such work and the cost thereof as specified in § 109-05 (C), Force Account Reports. The subdivision concludes with the following language:
Failure by the Contractor to promptly notify, in writing, the Engineer, the Regional Director, and the Commissioner of its contentions relative to any dispute or to maintain and furnish force account reports for disputed work shall constitute a waiver of the disputed work claim.
Standard Specification § 109-05 (C) (1) requires the contractor to deliver a daily summary of force account work done on the contract no later than the close of the day following the date the work is performed and provides a detailed list of items to be included in the summary. Section 109-05 (C) (2) requires the contractor to deliver to the EIC a force account summary of labor used on the work within five calendar days following the end of each pay period. The labor summary is required to include the name, hourly rate of pay, hours worked, fringe benefits and other items shown on the actual payroll. Within ten calendar days following the completion of specific force account work the contractor is required by § 109-05 (C) (3) to deliver to the EIC a force account summation detailing all materials, equipment and labor charges attributable to the work which shall be dated and signed by both the EIC and the contractor's authorized representative.

The seminal case dealing with notice provisions of public construction contracts is A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20 in which the Court found that notice provisions similar to those described in the preceding paragraph are conditions precedent to suit or recovery. Such notice provisions the Court stated (at p. 34): "provide public agencies with timely notice of deviations from budgeted expenditures or of any supposed malfeasance, and allow them to take early steps to avoid extra or unnecessary expense, make any necessary adjustments, mitigate damages and avoid the waste of public funds. Such provisions are important both to the public fisc and to the integrity of the bidding process."

The Court of Appeals also addressed in significant detail the standard to be applied when a contractor seeks to be excused from the notice provisions of a governmental construction contract. The Court held at p. 31:
A condition precedent is linked to the implied obligation of a party not to 'do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract' (Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87). Thus, it is a 'well-settled and salutary rule that a party cannot insist upon a condition precedent, when its non-performance has been caused by himself' (Young v Hunter, 6 NY 203,207; see also, Arc Elec. Constr. Co. v Fuller Co., 24 NY2d 99, 104; 3A Corbin, Contracts § 767, at 540 [1960]). Put another way, a party to a contract 'cannot rely on the failure of another to perform a condition precedent where he has frustrated or prevented the occurrence of the condition' (Kooleraire Serv. & Installation Corp. v Board of Educ., 28 NY2d 101, 106; see also Amies v Wesnofske, 255 NY 156, 163; Patterson v Meyerhofer, 204 NY 96, 100-101).

Thus, the relevant inquiry is not simply one of the Authority's bad faith or negligence in the performance of the contract but additionally whether the alleged misconduct prevented or hindered respondent's compliance with the notice and reporting requirements (see, Calamari and Perillo, Contracts § 11-28 at 486-489 [3d ed.]). In ascertaining whether, as to that key question, there are material issues of fact warranting a trial, we of course must view the evidence in the light most favorable to respondent.
With regard to the instant matter the claimant has utterly failed to establish an issue of fact concerning its compliance with the notice and record keeping requirements applicable to disputed work pursuant to the standard specifications made a part of the contract pursuant to Article 2. Nor has it proffered any proof that the notice and record keeping requirements were waived. More importantly, the claimant has failed to argue that the defendant in any way "prevented or hindered [claimant's] compliance with the notice and reporting requirements" (A.H.A. Gen. Constr., supra at p. 31). Absent such a showing the claimant's failure to comply with the notice and reporting requirements of the contract constitute a waiver of its claim and requires that the claim herein be dismissed.

March 6, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 10, 2001;
  2. Affirmation of Reuben Goldwaser dated September 7, 2001;
  3. Affidavit of Jack R. Carone sworn to August 30, 2001 with exhibits;
  4. Affidavit of Joseph J. Manna sworn to December 17, 2001 with exhibits;
  5. Affidavit of Paul Marinaccio, Sr. sworn to December 12, 2001;
  6. Letter dated December 17, 2001 from Reuben Goldwaser;
  7. Agreement dated February 23, 1998 regarding Contract No. D257531;
  8. Plans approved October 6, 1997 regarding Contract No. D257531;
  9. Book 1 and Book 2 of D257531 Proposal.

[1]Identified as Contract No. D257531.
[2]This date was extended by agreement to May 1, 2000 (Carone affidavit, paragraph 6).
[3]Neither the placement, authenticity nor incompleteness of the specifications was objected to by claimant's counsel on the motion and such submissions were, therefore, considered by the Court in formulating this decision and order.