New York State Court of Claims

New York State Court of Claims

CAB ASSOCIATES v. THE STATE OF NEW YORK, #2003-015-324, Claim No. 101711, Motion No. M-66104


Court denied defendant's motion to dismiss several of claimant's causes of action on the ground that they were barred by claimant's non-compliance with the contract's record keeping requirements. Court found defendant had not raised such alleged non-compliance with particularity in its answer per CPLR 3013 and had therefore waived such defenses.

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:
Tunstead & SchechterBy: Marvin Schechter, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Arthur Patane, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for partial summary judgment dismissing the third, fourth, fifth, sixth, seventh and eighth causes of action contained in the verified claim is denied. The instant claim arises out of a contract between the parties for the replacement of Beach Lane Bridge over the Quantuck Canal in the Village of Westhampton Beach, Suffolk County. Under the terms of the agreement work was to begin on May 12, 1993 and be completed on March 31, 1995. The contract, however, contained a provision constraining the demolition of the old bridge until September 7, 1993 which reduced the overall construction period from 688 to 570 calendar days, a loss of 119 calendar days. Claimant requested and was granted three extensions of time from March 31, 1995 until January 31, 1997. It is alleged that the completion date was delayed 555 days until the new bridge opened on October 7, 1996.

Claimant seeks damages for breach of contract alleging eight causes of action. It seeks payment of unpaid contract balances (first cause of action), the return of liquidated damages and engineering charges (second cause of action), claims for extra work (third through sixth causes of action) and claims for delay damages in the form of increased home office and field office overhead (seventh and eighth causes of action).

The defendant has moved for partial summary judgment seeking dismissal of the third through eighth causes of action on the ground that claimant failed to comply with a condition precedent to suit and therefore waived its right to recover additional charges by failing to keep contemporaneous records related to extra work, disputed work and delay damages and by failing to otherwise follow the contract's dispute resolution provisions. The motion is supported by the affidavits of defense counsel and a Licensed Professional Engineer (Paul Degen) employed by the New York State Department of Transportation (DOT). Degen asserts in his affidavit that he conducted a review of all job records and found that no force account records were kept by claimant or submitted to DOT relative to the outstanding claims for extra work, disputed work or delay damages as required as a condition precedent to suit in the contract.

Claimant opposed the motion by affidavits of its counsel and by an administrator of CAB Associates (Brian Warshaw). These affidavits, containing remarkably similar language, allege that the contract's force account records requirement for extra work have no application to the fourth through sixth causes of action since they seek "increased impact costs" rather than compensation for extra work. Claimant argues that unanticipated additional costs for labor, material and equipment used to meet contract requirements should not be classified as extra work subject to the contract's notice and documentation requirements. Claimant further alleges that its causes of action (seventh and eighth) for home office and field office overhead were not susceptible to calculation except on an annual basis at the completion of the project and that the contractual force account records requirement should not apply. Claimant further asserts, with regard to the third cause of action for extra work, that details of the work were furnished to DOT when problems arose and that notice of all conditions which impacted or delayed the project was timely provided to the defendant in the form of letters, verbal discussions on site, telephone conversations at weekly job meetings and at special meetings attended by Brian Warshaw, Charles Warshaw and occasionally by claimant's attorney. Notably claimant does not allege that it complied with the specific notice and documentation provisions of the contract or that force account records were kept with regard to the charges for which it seeks to recover in this action.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).

Claimant argues that the defendant waived the defense of claimant's non-compliance with a condition precedent by failing to raise the defense specifically and with particularity in its answer. The verified answer attached to the motion papers as Exhibit 2, insofar as relevant, states the following affirmative defenses:

23. Claimant has failed to comply with the dispute resolution mechanisms set forth in the contract.

24. Accordingly, the claimant has waived its right to seek the relief demanded herein.

25. Further, claimant has released the defendant from liability for the claim set forth herein.


26. The claim is barred by operation of the provisions of the contract, including specifically Article 13 of said contract entitled, "DELAY, INEFFICIENCIES AND INTERFERENCES" and the provision cited therein.

CPLR § 3013 requires, inter alia, that a pleading contain "the material elements of each cause of action or defense." A more substantial pleading requirement is imposed by CPLR 3015 (a) with regard to the performance or occurrence of a contractual condition precedent which must be asserted "specifically and with particularity" in the answer. Where, as in this case, claimant "fails to allege performance of a contractual condition precedent, then a defendant must specifically deny compliance with the condition precedent with particularity and the failure to do so constitutes a waiver of that defense" (Roel Partnership v Amwest Sur. Ins. Co., 258 AD2d 780, 781).

The first issue raised by the instant motion is whether the above quoted affirmative defenses raise the issue of claimant's non-compliance with a contractual condition precedent (force account records) specifically and with particularity. In this regard, defense counsel asserts the following in paragraph 6 of his affidavit in support of the motion:
. . . Claimant completely failed to maintain contemporaneous cost records of disputed work as required by the contract. By such omission claimant has both failed to perform a condition precedent to the pursuit of said claims and has acted to waive such claims.

The pleading requirement contained in CPLR 3015 (a) relative to conditions precedent requires both specificity and particularity in the answer. In 1014 Fifth Ave. Realty Corp. v Manhattan Realty Co., 67 NY2d 718, 719 the Court of Appeals noted that the defendant, in its answer to an action for specific performance, had in paragraph 14 specifically denied plaintiff's performance of contractual conditions under a lease and in paragraph 15 had "particularized 10 different respects in which faithful performance was lacking." The Court found that the particularity requirement of CPLR 3015(a) had been satisfied by the itemization of specific instances of non-performance in paragraph 15 of the answer. In Roel Partnership v Amwest Sur. Ins. Co., supra at 781, the Appellate Division, Third Department, found that the defendant met the specificity requirements of CPLR 3015 (a) when it asserted as a defense in the answer "that Roel breached the construction contract by failing to tender payments in accordance with its terms."

Although clearly stated in defense counsel's affidavit in support, the answer makes no mention of a failure to maintain contemporaneous cost records of disputed work. Given the dual requirement that such a defense be stated "specifically and with particularity" the Court finds that the affirmative defenses set forth in the answer fail to comply with the pleading requirements of CPLR 3015 (a). General references to claimant's non-compliance with contractual "dispute resolution mechanisms" and the bar allegedly arising from "operations of the provision of the contract, including specifically Article 13 of said contract" do not particularize the contractual condition precedent alleged to have been unperformed, in this case the maintenance of contemporaneous cost records concerning disputed work. The Court notes in this regard that Article 13 of the contract imposes both notice and record keeping requirements which must be met by the contractor as a condition precedent to suit. The answer does not specifically allege a lack of compliance as to either condition and the absence of specificity may not be cured by implication. Accordingly, the defense of failure to comply with a contractual condition precedent has been waived and defendant's motion is denied.

June 3, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 2, 2002;
  2. Affidavit of Arthur Patane sworn to December 2, 2002 with exhibits;
  3. Affidavit of Paul Degen sworn to December 2, 2002 with exhibits;
  4. Affidavit of Marvin Schechter sworn to January 31, 2003;
  5. Affidavit of Brian Warshaw sworn to January 30, 2003 with exhibits;
  6. Affidavit of Paul Degen sworn to February 7, 2003 with exhibits.