New York State Court of Claims

New York State Court of Claims

RAPID DEMOLITION v. THE STATE OF NEW YORK, #2003-015-343, Claim No. 105069, Motion Nos. M-66396, CM-66663


Court granted part of defendant's motion to dismiss claimant's fifth cause of action for lack of merit and denied remaining portion seeking dismissal of claimant's first, third and fourth cause of action. Court denied claimant's cross-motion to strike defendant's affirmative defense of waiver of contract dispute and resolution provisions and denied claimant's motion for summary judgment on first, second and fourth causes of action. Claim relates to construction for Wantagh State Parkway Bridge.

Case Information

RAPID DEMOLITION COMPANY, INC. The caption of this claim was amended by order of the Court filed January 18, 2002 to name the sole proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this claim was amended by order of the Court filed January 18, 2002 to name the sole proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Georgoulis & Associates PLLCBy: Jennifer Redmond, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eidin Beirne, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 14, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for partial summary judgment dismissing the fifth cause of action in the verified claim on the grounds that it is without merit is granted; defendant's motion seeking an order dismissing the first, third and fourth causes of action is denied. Claimant's cross-motion for an order striking the defendant's second affirmative defense asserting the claimant waived its right to assert its claim for failure to comply with the dispute resolution and disputed work provisions of the parties' contract is denied as is claimant's motion for partial summary judgment on the first, second and fourth causes of action. The claim seeks to recover damages for extra work and delay/inefficiency arising out of alleged mistakes, inaccuracies and omissions in contract plans, specifications and drawings supplied by the New York State Department of Transportation (DOT) in connection with a project known as the "Removal of the Wantagh State Parkway Bridge over Sloop Channel and Bikeway Resurfacing (Contract No. D 257962) in the Town of Hempstead, Nassau County, New York". The claim asserts five causes of action: (1) $1,200,000.00 in damages for additional labor, material, equipment, disposal, trucking, consulting fees and home office expenses arising out of errors, omissions, mistakes and inaccuracies contained within the contract plans, specifications, drawings and blue prints; (2) $250,000.00 in damages including $144,957.00 previously approved by order on contract stemming from DOT's forced removal of a crane from the project site for DOT's use elsewhere; (3) unspecified damages for delay, disruption and breach of contract stemming from said forced removal of the crane from the project site; (4) $750,000.00 in damages arising from DOT's error, omission and/or mistake in failing to specify an acceptable watertight sealant for casings used to relocate underwater electric, gas and telephone utilities pursuant to an addendum to the original bid package and (5) $92,000.00 in damages resulting from DOT's unilateral reduction of claimant's bid in alleged violation of unspecified New York State competitive bidding laws.

The Court here is faced with competing motions for partial summary judgment. Defendant's motion is addressed to the first, third, fourth and fifth causes of action while claimant's motion is addressed to its first, second and fourth causes of 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).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653). On a motion for summary judgment the Court's "focus must be upon 'issue finding, rather than issue determination'" (Vopelak v Tedeschi, 281 AD2d 809; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). Where the Court finds that the motion papers raise a material issue of fact the motion or in this case the motion and cross motion must be denied (see, Lustyik v Manaher, 226 AD2d 852).

The affidavits submitted by the parties demonstrate the existence of multiple questions of fact with reference to the subject contract including whether an addendum to contract specifications adopted April 8, 1999 (Exhibit 1 attached to affidavit of Joseph Najjar, sworn to May 12, 2003) was made a part of the contract. Claimant's president and owner Joseph Najjar alleged in his affidavit sworn to March 31, 2003 that the standard contract specifications dated January 2, 1995 were superceded by an addendum dated April 8, 1999 while the defendant alleges that the April 8, 1999 addendum was not specifically incorporated into the contract, was not cited on the cover of the State's request for proposals (RFP) and the 1999 addendum is therefore irrelevant to the subject contract.

Similarly the parties have offered conflicting affidavits regarding whether the bid specifications required the use of a watertight sealant on casings used in the relocation of underground/underwater utilities at the site. "The court may not weigh the credibility of the affiants on a motion for summary judgment unless it appears that the issues are not genuine but feigned" (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441).

The Court finds that the language of both the allegedly controlling provisions are ambiguous requiring denial of the motions relating to the first and fourth causes of action. In paragraph 3 of his affidavit signed on April 25, 2003 Byron Alford references Exhibit 5 attached thereto as establishing that only addenda in effect on the date of advertisement for receipt of bids were incorporated into and became a part of the parties' agreement.

Exhibit 5 is represented by Mr. Alford, as the Court reads his statement, to be the definition of the term "addenda" contained in the January 2, 1995 standard specifications. The cited provision reads as follows:
101-02.1. ADDENDA. Supplemental additions, deletions, and modifications to the provisions of the Standard Specifications which are in effect on the date of advertisement for receipt of bids.

The language of § 101-02.1 of the Standard Specifications is subject to differing reasonable interpretations dependent upon whether one views the clause "in effect on the date of advertisement for receipt of bids" as referring to supplemental additions, deletions or modifications as urged by Mr. Alford or as pertaining to the Standard Specifications in effect on such date. Resolution of the competing motions relating to the claimant's first cause of action are dependent upon an interpretation of the above provision which the Court finds is not able to be accomplished as a matter of law (Leon v Lukash, 121 AD2d 693; Levey v Leventhal & Sons, 231 AD2d 877).

Similarly, the only provision cited in reference to the fourth cause of action alleging a failure to specify use of a watertight sealant is Note 2 of a drawing included as Exhibit 5 of claimant's motion papers which provides that "all casings, either containing cables or inner-ducts, shall be sealed at the exposed ends". The meaning of the term "sealed" as used in Note 2 is dependent upon extrinsic proof which on the motion record is contradictory. Under these circumstances, summary judgment must be denied (Jellinick v Joseph J. Naples Assoc., 296 AD2d 75; Airco Alloys Div. v Niagara Mohawk Power Corp., 76 AD2d 68).

With regard to the second cause of action claimant alleged in the motion papers that during the term of this project DOT required claimant to allow a crane used in the demolition of the bridge's superstructure to be removed to an unrelated construction site (see, affidavit of Joseph Najjar para 92-93, sworn to March 31, 2003). Claimant further alleges that the forced removal of the crane required it to incur additional expenses for which it seeks compensation. Claimant states that an order on contract for expenses attributable to relocation of the crane was approved by DOT on some unspecified date but that no payment to Rapid on the approved order on contract has been received (Najjar affidavit, para 95, sworn to March 31, 2003).

By affidavit of Gordon Hamilton, Principal Auditor of State Expenditures in the Office of the State Comptroller sworn to May 1, 2003 and the affidavit of Paul Degen DOT Claims Engineer, sworn to May 2, 2003 the defendant denies claimant's allegations and asserts that the expenses incurred as a result of the crane's removal from the project were paid along with other unspecified expenses to claimant's surety Lumbermens Mutual Casualty Co. (Lumbermens) pursuant to an assignment by Rapid of any and all claims arising in connection with labor, materials and services supplied with reference to Contract D 257962 (see, Exhibit A attached to affidavit of Gordon Hamilton sworn to May 1, 2003). The affidavits of Hamilton and Degen present evidence in admissible form which contradicts claimant's allegation of non-payment for damages arising from the crane's removal and therefore create a material issue of fact which precludes summary judgment on claimant's second cause of action. However, although the affiants assert the fact of payment the proof submitted does not establish that the amounts paid by the State on March 22, 2002 ($105,318.20), May 7, 2002 ($7,260.00) and April 16, 2003 ($45,000.00) pursuant to Estimate No. 12 actually compensated claimant for all or part of the losses claimed. Mr. Degen acknowledges that the change order was included, along with other items, in payment Estimate No. 12. The precise amount paid for costs attributable to relocation of the crane is not stated and it will remain for the trier of fact to determine whether the payments referenced in Hamilton's affidavit satisfied the claim in that regard.

The Court reaches a similar conclusion with reference to the third cause of action seeking unspecified damages for delay, disruption (interference) and breach of contract resulting from the crane's removal. The Court's determination in this regard is contingent upon proof concerning applicability of the April 8, 1999 addendum to the general specifications and the extent to which the alleged payment to the surety adequately compensated Lumbermens for damages sought in the second and third causes of action. Resolution of these issues must abide the trial of this action.

The defendant, having raised the fact of assignment for the first time in the affidavit of Gordon Hamilton, argues in its supplemental memorandum of law that the assignment by Rapid to Lumbermens deprived claimant of its capacity to prosecute the claim and accordingly seeks summary judgment dismissing the claim in its entirety.

Even assuming the issue was properly raised by the defendant, it has been clearly established that "[i]t is essential . . . that a party raise the legal argument of lack of standing to sue in its answer to a complaint or in a pre-answer motion to dismiss (see, CPLR 3211 [a][3]; [e]; see also Dougherty v City of Rye, 63 NY2d 989, 991). The failure to do so is fatal in that it constitutes a waiver of this argument at all subsequent phases of the litigation (see, Dougherty v City of Rye, supra, Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656; National Assn. of Ind. Insurers v State of New York, 207 AD2d 191, 197; Muchnick v Alcamo Supply & Contr. Corp., 169 AD2d 711)." As the matter of claimant's lack of standing was not raised either in the defendant's answer or in a pre-answer motion to dismiss the defense has been waived and the requested relief is denied (CPLR 3211 [e]). Presumably in response to defendant's imposition of the standing issue claimant requested permission to amend the claim to include Lumbermens as a party/co-claimant. In this regard the Court notes that Court of Claims Act § 9 (9) provides that practice in this Court shall be the same as in Supreme Court "except as otherwise provided in this Act." Court of Claims Act § 15 establishes a specific procedure to accomplish the substitution of an assignee who has succeeded to all or part of a named claimant's interest in a claim. Given the specific method for substitution of an assignee prescribed by the Court of Claims Act (not invoked herein) the request to amend the claim pursuant to CPLR 3025 (b) to add Lumbermens as a party must be denied.

The fifth cause of action which alleges a violation of unspecified competitive bidding laws containing no citation to a statute or statutes alleged to have been violated is without legal merit and therefore subject to dismissal on the defendant's motion. Claimant's argument in support of its fifth cause of action is based upon the premise that a procedure violates the competitive bidding law if it allows one party to a public improvement contract to alter terms or conditions of an agreement, citing Diamond Asphalt v Sander, 92 NY2d 244. Claimant's reliance upon Diamond Asphalt is misplaced under the circumstances of the instant case.

Claimant submitted its bid on the Wantagh State Parkway Bridge Project in the amount of $3,281,000.00. Included in that amount was the sum of $215,500.00 for mobilization costs leaving a remainder of $3,065,500.00. Sections 699-4 and 699-5 of the Standard Specifications (Defendant's Exhibit S) provide as follows:
699-4 METHOD OF MEASUREMENT. Payment for mobilization will be made on a lump sum basis.

699-5 BASIS OF PAYMENT. The amount bid for mobilization shall not exceed four percent (4%) of the total contract bid price excluding the bid price for mobilization. Should the bidder exceed the foregoing four percent (4%), the Department will make the necessary adjustment to determine the total amount bid based on the arithmetically correct proposal.
Pursuant to the above quoted specification, the applicability of which neither party disputes, DOT determined that claimant's bid for mobilization exceeded the 4% maximum prescribed by the specification and therefore made the permitted adjustment of the bid. DOT properly determined that claimant's bid exclusive of mobilization was $3,065,500.00 and that the specified 4% cap restricted claimant's bid for mobilization to the sum of $122,620.00. Accordingly, claimant's bid was adjusted to $3,188,119.75, a sum which Rapid accepted as demonstrated by its execution of the contract in the adjusted amount.

The State's $92,880.00 adjustment for excess mobilization costs was thus expressly authorized by the contract documents. The fifth cause of action is, accordingly, dismissed as being without merit.

The motion and cross-motion are denied insofar as they seek summary judgment as to the first, second, third and/or fourth causes of action. Finally, claimant's motion seeking dismissal of the defendant's second affirmative defense is denied

August 14, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 10, 2003;
  2. Affidavit of Byron Alford sworn to February 6, 2003 with exhibits;
  3. Cross-motion dated March 31, 2003;
  4. Affidavit of Joseph Najjar sworn to March 31, 2003 with exhibits;
  5. Affidavit of Gordon Hamilton sworn to May 1, 2003 with exhibits;
  6. Affidavit of Paul Degen sworn to May 2, 2003 with exhibits;
  7. Affidavit of Byron Alford sworn to April 25, 2003 with exhibits;
  8. Affirmation of Jennifer A. Redmond dated May 13, 2003;
  9. Affidavit of Joseph Najjar sworn to May 12, 2003 with exhibits;
  10. Affidavit of Bruce Dickstein sworn to May 12, 2003 with exhibit.