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).
It has further been held that in considering a motion for summary judgment by a
defendant "the issue is not whether plaintiffs can ultimately establish
liability, but, rather, whether there exists a substantial issue of fact in the
case on the issue of liability which requires a plenary trial. (see e.g.,
Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Rotuba
Extruders v Ceppos, 46 NY2d 223, 231)" (Barr v County of Albany, 50
NY2d 247, 253). Furthermore, "[t]he court's function on a motion for summary
judgment is not to resolve issues of fact or to determine matters of credibility
but merely to determine whether such issues exist (see Barr v County
of Albany, 50 NY2d 247; Rebecchi v Whitmore, 172 AD2d 600, 601;
Daliendo v Johnson, 147 AD2d 312, 317)" (Roth v Barreto, 289 AD2d
In support of its motion to dismiss causes of action 2 through 6 the defendant
offered inter alia the affidavit of James Ludlam, a licensed professional
engineer employed by the New York State Department of Environmental Conservation
who is familiar with the State's Inactive Hazardous Waste Disposal Site Remedial
Program (State Superfund Program). The facts presented therein were not
disputed by claimant and provide an overview of the general circumstances giving
rise to the contract at issue.
Mr. Ludlam described in general terms the process by which DEC identifies,
characterizes, investigates and remediates sites containing consequential
amounts of hazardous wastes which includes material generated from certain
industrial processes or materials which are flammable, explosive, corrosive or
toxic. He explained how once a site is characterized (i.e., identified by the
general presence and type(s) of contamination) and listed in the State's
Registry a remedial investigation is conducted usually by a consultant engineer
under contract with DEC. The remedial investigation explores the site to
determine the nature and extent of contaminants, their source(s) and pathways
for migration and the site's environmental media. The data and knowledge gained
from the investigation is used to identify and evaluate alternatives for
A feasibility study follows the remedial investigation and includes DEC's goals
for the site and the identification/evaluation of remedial alternatives. The
remedial investigation and feasibility study lead to the development of a
remedial action plan and a record of decision in which DEC identifies the
selected remedy and explains the rationale for its decision.
According to Ludlam, implementation of the remedy usually involves two phases
(1) remedial design which generates details and plans for the work to be
conducted and (2) remedial action.
Mr. Ludlam alleged that the first step of the remedial design is the final
engineering report which establishes the general scope and character of the
planned remediation. The submission and acceptance of the final engineering
report is followed by the development of plans and specifications (the final
design) which become the bidding documents for the remedial action
The affiant described remedial action as involving the installation of
monitoring systems and/or implementation of institutional controls. Remedial
action often involves removing or treating contaminated soil, pumping and
treating contaminated groundwater, demolition and removal of structures and
facilities and the construction and capping of landfill(s) containing waste
material. When the remedial action at the site is completed the site is
reclassified and/or delisted.
Mr. Ludlam then described the subject site (AVM) as the site of a foundry
engaged in the manufacture of valves and pipe fittings over an eighty year
period (1904 - 1986). He further related that sand used in the manufacturing
process became contaminated with toxic levels of lead and other heavy metals
(foundry sand). That sand and other industrial wastes were dumped on the site
throughout AVM's operating history. In addition, industrial solvents such as
tetrachloromethane and trichloromethane, known as volatile organic compounds
(VOCS) were used as cleaning agents and deposited in the facility's degreasing
pit, holding areas, connecting trenches and sanitary sewers. He alleges that
over time the VOCS leached from their containment structures and migrated
throughout the site mixing with the site's native soils and groundwater.
After AVM went out of business in 1986 DEC attempted but failed to engage the
owner in a remedial investigation of the site. Ultimately a referral was made
which enabled the State to proceed using the State Superfund. The State's
acquisition of the site was without benefit of a detailed study or inventory of
contaminants on and around the site.
Thereafter, DEC hired Malcolm Pirnie, Inc. (MPI) to provide engineering
services which included preparation of the remedial investigation and site
feasibility study (RI/FS) reports and remedial design and construction
management activities. MPI produced two separate RI/FS reports for the site
which was divided into two units denominated "operable unit 1 and
The contract at issue, which was to remove and/or mitigate hazardous wastes at
the site, was the final step in the remediation process. MPI prepared the
contract documents and was designated therein as the "project engineer."
Ludlam asserts that during the RI/FS and development of the project plans and
specifications he reviewed and approved MPI's investigation and studies and
processed and approved MPI's payment applications. During the remedial action
phase he coordinated the State's efforts to inform and solicit comment from the
public regarding activities at and around the site.
According to the affiant the project's design required the excavation and
collection of foundry sand into a single landfill to be covered with a
geomembrane cap. VOC contaminated soils were to be excavated and treated on
site by (low temperature) thermal desorption, a process involving the heating
of soil to convert the VOCs into a gaseous state. The contaminants were then
separately captured and removed. The contract required the treated soils to be
replaced on site in the general areas from which they were excavated.
Additionally, the project required the abatement of asbestos located in the
foundry and the demolition of that building, the removal of underground
utilities and storage tanks, abandonment and modification of monitoring wells
and the installation of new wells, treatment of on-site ground water and
installation of sewer facilities.
The State also submitted the affidavit of Robert C. Knizek, a licensed
professional engineer employed by DEC who served as Chief of the Eastern Field
Services Section of DEC's Bureau of Construction Services during the period
2001-2002. In that capacity his duties included construction management of
several remediation projects including the AVM site through an engineering staff
of five people. With regard to the subject site Knizek's duties included the
supervision of all phases of the construction contract execution including the
review of final plans and specifications before bidding, preparation of
advertisements for bids, presiding over the pre-bid meeting, attendance at job
progress meetings, approval of change orders before final execution by the
State, reviewing and approving payments to the contractor and initially
reviewing disputes filed by the contractor.
This affiant alleged that the project was released for bids on September 5,
2000 and that a pre-bid meeting was held at the site on September 27, 2000 to
address questions posed by prospective bidders and to permit bidders to inspect
the site. Several potential bidders including ERM C & O Services, Inc.
attended the pre-bid meeting. The minutes of that meeting including questions
posed by potential bidders and answers provided by DEC and MPI were
incorporated into the contract as Addendum No. 1. Subsequently posed questions
to MPI and answers provided were incorporated into the contract as Addendum No.
ERM C & O Services Inc. submitted the lowest of eleven bids in the sum of
$3,497,942.70 and was notified of the bid's acceptance by notice of award dated
November 2, 2000. The contract was approved by the State Comptroller on January
9, 2001 and a notice to proceed was issued on February 5, 2001, the date from
which substantial completion and final completion of the project were
Knizek admitted that the project involved the disturbance, excavation, removal,
disposal and/or replacement of soils, materials, structures and utilities which
to a large extent were beneath the surface and not visually observable. He went
on to say, however, that there were various means by which a potential bidder
could obtain additional information regarding subsurface conditions including
borings, geoprobes and test pits. These routine extraction and testing methods,
according to the affiant, also furnish information regarding the water content
of subsurface soils at the location where and time when the material is
He alleged that prior to letting of the contract 80 soil borings were taken
inside and outside the building at the AVM site. The data obtained from those
borings were incorporated into the bid documents as Appendix A. He alleged
further that the borings formed the basis of the landfill cross-section
contained within the contract plans.
The affiant pointed to Section III Article 13 of the contract to support the
proposition that the boring data provided information limited only to the
location and time the borings were taken and that the State made no
representations or warranties as to the completeness of the data or information
supplied. He also referred to Section III Article 15 which imposed upon bidders
the responsibility of obtaining any additional information they might require.
Moreover, bidders were advised of the availability of the RI/FS for both
operable units (see Article 5, Section IV, Bidding Information and
Requirements and Addendum No. 1, [pre-bid meeting minutes]).
Knizek asserted that claimant was afforded an opportunity to conduct tests or
investigations of the site following the September 27, 2001 pre-bid meeting and
again on October 4, 2001. Although claimant was present at the site on both
dates it performed no tests and conducted no investigations. With regard to the
building itself Knizek alleged that while borings had been taken within the
building footprint to identify subsurface materials the State had not
investigated the size or condition of the foundation footings and grade beams
underlying the structure's walls and the slab on which it was constructed. In
Addendum No. 2 in answer to bidder's question #25 the State advised that the
approximate thickness of the foundation was one foot and that there were no
other data regarding the size of foundations or slabs. Knizek alleges that the
State anticipated that the contractor would estimate the size and extent of
these components by viewing the building and applying basic engineering
Knizek alleged that with regard to the extent and location of foundry sand 43
borings were performed inside the building, test pits were dug outside and 35
surface samples were taken both inside and outside the buildings during the
investigative phase of the project. Results of this testing were made
available to bidders in Appendices B, D and E of the contract documents.
Additionally Plan Sheet 13 showed the location of the aforementioned surface
samples and several of the samples discussed in Appendix D showed the presence
of sand. Plan Sheet 4, a cross-section of the site and building, showed
foundry sand to be removed. He alleged that contrary to claimant's assertion
that no foundry sand was anticipated beneath the building, question/answer #48
set forth in Addendum No. 2 specifically advised bidders to assume that the
concrete pads and foundations had been in contact with hazardous wastes,
including foundry sand.
On the subject of unit pricing Knizek asserted that the plans, specifications
and supplemental information included estimates of quantities expressed in units
such as square feet, cubic yards, tons, etc. Bidders were required to provide a
price per unit in their bids. The witness explained that unit pricing was
utilized so that if anticipated quantities were exceeded DEC could estimate how
much the contract price might increase by multiplying the additional quantities
by the agreed unit price. The instant contract, however, also contained a
provision whereby a contract unit price could be adjusted should actual
quantities encountered exceed those anticipated in the contract by 115%
resulting in a cost increase of $30,000 or 5% of the contract price (General
Conditions). Any such adjustment was dependent upon the contractor providing
adequate documentation of the alleged additional expense.
Knizek further alleged that Section XI-01050 of the contract required the
contractor to assist MPI in locating boring locations and test pits and cites
this requirement as proof that the contract anticipated that borings and pits
would be used to determine the actual location and extent of subsurface
Knizek categorically denied any mutual mistake on the part of the State as to
quantities of either foundry sand or VOC contaminated soils as alleged in the
claim, stating that the use of estimated quantities surrounded by cautions in
the pre-bid documents along with contract provisions providing for increases and
decreases in unit prices should have alerted responsible bidders to be cautions
when estimating costs relative to subsurface materials.
Mr. Knizek further alleged that the claimant was required by the contract to
give prompt written notice of any subsurface conditions deviating from the plans
and specifications (General Conditions, Articles 3.7 and 3.8); to furnish
prompt written documentation regarding the contractor's costs associated with
the alleged deviation (General Conditions, Article 3.12) and that if the matter
was not resolved to the contractor's satisfaction it must then pursue the
contract's dispute resolution procedure (General Conditions Article 15).
According to this affiant the notice and documentation provisions alert DEC to
the possibility of greater expense and afford DEC the opportunity to develop
means to control costs. Knizek alleged that at a pre-construction meeting held
on January 18, 2001 he reminded those present including several of claimant's
representatives of the notice and dispute resolution provisions and stressed the
necessity of compliance with such provisions.
The affiant also addressed the contract's anti-assignment clause (Section VIII,
Appendix A, para 2) which refers to State Finance Law § 138 which, in turn,
prohibits the assignment of contracts without the State's prior written
approval. He alleged that at no time during its performance under the contract
did ERM request DEC's written consent to assign its interest in the contract to
ECOR Solutions, Inc. and no such consent was given by DEC. Additionally, he
asserted that despite having advised a representative of ERM that it should
formally notify DEC of its alleged corporate name change no such written
notification was ever provided.
With regard to delay damages Knizek asserted that claimant agreed pursuant to
Article 11 of the parties' agreement to make no claim for consequential damages
attributable to delays, interferences or inefficiencies caused by any act or
omission on the part of the State.
Mr. Knizek alleged that the General Conditions of the contract specified that
time is of the essence (Article 10.12.4) and that time extensions could be
effected solely by an executed change order (General Conditions, Article 10.2
and 10.12) and only if the contractor substantiated the extent of the increase
within 15 days of discovery of the event necessitating the proposed time
extension. According to the affiant a time extension would only be granted upon
a demonstration by the contractor, through an analysis of an approved progress
schedule, that the delay arose from unforeseen causes beyond the contractor's
control (General Conditions, Article 10.12.3). He further alleged that the
contractor's failure to comply with the time requirements for delivery of
written proposed change orders or claims constituted a waiver of any request or
claim for an extension of time
Knizek does not dispute that during the work claimant's representatives
verbally discussed the claimant's concerns regarding its ability to complete the
contract within the time specified. He denies, however, that a time extension
request was discussed at a November 16, 2001 meeting despite claimant's letter
of December 17, 2001 requesting that the minutes of the November 16 meeting be
amended to include such a reference. In fact, Knizek alleges that ECOR did not
request a time extension in writing until February 22, 2002 in an unnumbered
change order request. That request, he asserted, came 8 months subsequent to
claimant's alleged encountering of additional quantities of foundry sand and
over 4 months after claimant became aware that estimated VOC contaminated soil
quantities were being exceeded. Moreover, he alleged that the required analysis
of the project schedule in support of its claimed need for a time extension was
not submitted until after claimant's termination in April 2002.
The third affidavit in support of defendant's motion is by Michael Mason, a
licensed professional engineer employed by DEC who served as project manager and
senior DEC representative at the AVM site. His duties included attendance at
job meetings, receipt and review of correspondence from claimant and MPI,
monitoring the performance of contract work and review, approval and/or
adjustment of change orders and claimant's payment applications.
Mason related information regarding the September 27, 2000 pre-bid meeting
attended by claimant's representatives and noted that claimant neither requested
permission to perform any pre-bid inspections or testing of the site nor
conducted such tests.
The affiant discussed several of the contract's provisions including those
related to dispute resolution (General Conditions, Article 15), the requirement
that all notices and claims be in writing (General Conditions, Article 16) and
no damages for delay ( Article 11 of the Agreement). He also made reference to
a contract provision requiring the contractor to report at once and in writing
any error or discrepancy in the contract documents before proceeding with the
work and that any work undertaken before interpretation/clarification by the
engineer was performed at claimant's own risk (General Conditions, Article
2.3). Moreover, claimant agreed to make no claim with regard to alleged errors
or inadequacies without written notification and without submitting within 15
days thereafter a written proposed change order (General Conditions, Article 3.8
and 3.12). Claimant was required to substantiate the amount and extent of any
proposed adjusted price (General Conditions, Article 3.10, 3.11 and Article
With regard to errors or inconsistencies related to site conditions, the
affiant asserts that claimant's failure to provide prompt written notice of such
errors or inconsistencies might invalidate a request for a price increase or
time extension. When an "event" gives rise to a claim or dispute claimant was
required to give written notice thereof within 15 days and provide written data
to support its claim within 45 days (General Conditions, Article 8.10).
Claimant's failure to provide timely written proposed change orders or notices
of claim would constitute a waiver of any claim for a time extension (General
Conditions, Article 10.13).
Mason alleged further that the pre-bid documents incorporated into the contract
as Appendix A relating to well borings/well point logs and numerous standard
construction contract provisions made clear to claimant that subsurface and
technical information provided was intended to inform readers of information
used in the project design and advised that the State made no warranty as to the
completeness of such information. Claimant was warned that the information
provided was not a substitute for its own personal investigation and claimant
agreed that it had full responsibility for such subsurface conditions as could
reasonably be foreseen (General Conditions, Section VIII, Article 3.4).
Similar provisions are alleged to be found in the supplemental specifications
at sections XI-01010 and XI -02014.
Mason asserts that pursuant to section V, Article 1 (a) of the contract bid
form and acknowledgment claimant declared that it had carefully examined the
bidding documents and inspected the actual location of the work and that by
bidding claimant waived any right to plead any misunderstanding regarding the
terms and conditions.
The affiant pointed to various provisions of the contract which permitted
changes including those pertaining to increases in the contract work and which
set forth a procedure to effect such changes. In addition he referred to the
language of Section III, Article 15 of the contract which cautioned bidders that
in an itemized contract quantity estimates were approximate and provided only as
a basis of calculation for the awarding of the contract. He alleged that
General Conditions, Article 11.2.2 specifically provided that the estimated
quantities of unit price work were not guaranteed and were used solely to allow
DEC to compare bids and determine the contract price (he further referred to
Supplementary Specifications, Sections XII-01025 and XI-01050).
Regarding VOC contaminated soils Mason alleged that in response to contractors'
written question #32 (Addendum No. 2) DEC informed bidders that quantities of
such soils found offsite would be treated as a variance in quantity as provided
for elsewhere. The contractor was advised that it would need to determine the
limits of foundry sand by excavating test pits [see Section XI-02220,
Part 3.3 (A)].
Mason then addressed specific allegations contained in the instant claim which
the defendant now seeks to have dismissed. He addressed the alleged material
inaccuracies and misrepresentations by category beginning with foundry sand.
Claimant, he asserts, alleges three categories of additional foundry sand;
namely (1) sand under the building to be demolished (2) on-site sand found
outside the areas depicted on the contract plans, and (3) sand found outside the
project limits. Mason alleges that the data from seven of the test borings made
by MPI during the RI/FS and design phases of the project and made available to
bidders as Appendix A indicate the presence of sand beneath the building. He
further alleges that a visual inspection of the building slab in the area of the
crushing pit revealed the presence of foundry sand and that borings taken
outside the building showed the presence of foundry sands throughout the site.
The affiant alleges that claimant engaged in the excavation of test pits on June
28, July 3 and July 7, 2001 as provided under Section XI-02220, Part 3.3 to
determine the limits of foundry sands. The affiant further points to the
affidavit of claimant's site manager, Ralph G. Schaar submitted in ECOR's action
against MPI in Federal District Court [Defendant's Exhibit 6] in which Mr.
Schaar related that as early as mid-June 2001 "[i]t was beginning to be apparent
that far more foundry sand was present than represented in the Contract
Documents". Despite this alleged early knowledge of differing quantities of
foundry sand the affiant asserts that the State received no written notice of
claimant's intention to seek compensation on a time and materials basis, no
daily calculation of quantities of foundry sand removed were provided, no
substantiation of labor, materials or equipment was furnished to the State or
its representative, and no proposed change order was submitted until May 24,
2002 (i.e., change order request #2, attached to the claim as Exhibit G).
In addition Mason alleges that claimant also seeks compensation for the removal
of additional quantities of foundry sand located outside the site which were
remediated during the period from August 13, 2001 to September 25, 2001. The
affiant states that although time and material records were maintained by
claimant for this work claimant failed to submit a proposed change order until
January 3, 2002 when it submitted an unsigned proposed change order entitled
"Change Order - Notice of Differing Site Conditions" (Defendant's Exhibit
Claimant also seeks to recover damages for unanticipated foundry sand in the
driveway of the facility which was outside the foundry sand areas designated on
the plans. Mason alleges that while claimant removed foundry sand and
backfilled that area on March 21 - 22, 2002 claimant failed to provide written
notification of any error or plan discrepancy or of a changed condition prior to
commencement of said work and submitted no proposed change order for the work
until May 24, 2002.
Mason further alleges that claimant commenced work on building decontamination
and demolition on June 27, 2001 and completed most but not all such work by
mid-November 2001. Although written notice of alleged changed conditions was
furnished on October 2, 2002 regarding the presence of foundry sand under the
building slab, no proposed change order addressed to the unusual composition of
the slab itself and unanticipated foundation footings and grade beams was
submitted until February 25, 2002 [sic].
With regard to claimant's claim for damages related to quantities of VOC
contaminated soil in excess of contract estimates Mason alleges that claimant
provided notice of an alleged discrepancy on November 15, 2001 for one area of
the site only even though claimant was aware of the discrepancy as early as
October 3, 2001 (see Bill of Particulars, Exhibit 5). According to Mr.
Mason a proposed change order was not submitted for even that specific area
until May 24, 2002. It is further alleged that no written notice was given
concerning discrepancies in the quantity of VOC contaminated soils in other
areas of the site until claimant submitted a proposed change order on January 4,
Claimant also seeks recovery for damages incurred by the extension of its
groundwater treatment system from a planned 87 calendar days to 140 calendar
days allegedly due to "unforeseen conditions" ceasing on the date of claimant's
termination (April 10, 2002). Mason alleges that claimant failed to provide
written notice of any alleged changed conditions or of any related delay and
further failed to submit a proposed change order related to groundwater
treatment until May 24, 2002 (change order request #13).
The affiant alleges a similar delay in claimant's submission of a proposed
change order related to the removal and disposal of an underground sludge
containment structure not depicted in the contract documents. Mason alleges
that the structure was discovered on October 29, 2001 and that the structure
and its contents were removed by January 23, 2002 but no proposed change order
was submitted regarding this work until May 24, 2002.
Mason asserts that claimant commenced its low temperature thermal desorption of
VOC contaminated soils on October 12, 2001 but provided no written notice of
alleged changes in conditions relating to the soil's elevated moisture content
until claimant submitted proposed change order #7 on May 25,
According to the contract documents payment for quantities of VOC contaminated
soils above the estimated quantity was to be made on the basis of weight of
such treated soils. That weight was to be determined by means of a belt scale
attached to the thermal desorption unit. Claimant alleges that the State
breached its contract with claimant by requiring claimant to perform two
separate scale accuracy tests. Mason alleges, however, that the contract
(specifically Section XI: 13100: 1.3D) required the contractor to furnish scale
calibration tickets weekly to demonstrate the scale's proper operation to the
satisfaction of the engineer.
Mason alleges that if the scale testing required by DEC was a changed condition
or was an item of dispute claimant gave no written notice related to the January
15, 2002 and February 5, 2002 scale tests until claimant submitted a proposed
change order #15 on May 24, 2002.
Claimant submitted a proposed change order #14 on May 24, 2002 alleging a
changed condition with regard to the State directing claimant to install and
operate a continuous emissions monitoring system. Mason alleges in his
affidavit that claimant was required by Section XI-13100 of the contract
specifications to provide continuous emissions monitoring equipment and that the
State's directions were therefore not outside the scope of the contract. Even
if it were, Mason asserts that no timely written notice of the changed condition
Mason makes similar allegations of claimant's failure to provide written notice
of claims for (1) winterization expenses except for a May 29,
proposed change order and (2) additional
sampling at "Area 11" in a proposed change order submitted on May 24, 2002 and
(3) construction of soil treatment and stockpile area pads which began June 28,
2001 and ended in early August 2001 but was included in a proposed change order
dated May 24, 2002.
Finally, with regard to the discovery and removal of a water line containing
asbestos, Mason alleges that although claimant provided written notice of such
differing condition on June 25, 2001 and submitted a proposed change order on
July 31, 2001 it failed to supply the required substantiation of labor, material
and equipment to support the additional costs until August 21, 2001 after
substantial completion of the work.
In response to the proof offered by the defendant claimant asserts that summary
judgment is inappropriate in that questions of fact exist with regard to
defendant's waiver of the contract's notice and documentation provisions.
Claimant also argues that the motion is premature in that additional discovery
is required to fully develop the record.
Without citing particular factors from the voluminous submissions, the Court is
satisfied that the claimant has marshaled the minimum level of proof required to
establish the existence of material issues of fact precluding a grant of summary
judgment. In particular, questions exist concerning the State's awareness of
extra work performed by the claimant and whether the defendant waived its right
to insist upon strict compliance with the notice and documentation requirements
of the contract (see G. DeVincentis & Son Constr. v City of
Oneonta, 304 AD2d 1006; Amadeus v State of New York, 36 AD2d 873).
Resolution of these issues is largely dependent upon issues of credibility which
are not amenable to summary determination (S.J. Capelin Assocs v Globe Mfg.
Corp., 34 NY2d 338). In addition, summary judgment is at this time
inappropriate given the need for further discovery. While significant
disclosure has already taken place, claimant alleges that the deposition of
James Ludlam and the continuation of the depositions of Robert Knizek and
Michael Mason were scheduled to be conducted at the time the defendant served
the instant motion. In addition, claimant states that it intends to depose
representatives of Malcolm Pirnie, Inc. and another DEC employee, Meta Murray.
Under these circumstances and in light of the complex and inter-personal nature
of the issues to be decided the defendant's motion must be denied (Friot v
Wal-Mart Stores, 240 AD2d 890; Carter v Maskell, 192 AD2d 898).
With regard to the cross-motion, the claimant has failed to establish that the
contract was wrongfully terminated as a matter of law. First, the record fails
to establish the actual basis for claimant's dismissal. The April 1, 2002
notice of termination does not particularize the basis for termination and
employs the broadest of language in describing the grounds for the action taken.
On its motion, claimant provides only conclusory and speculative assertions to
support its claim of bad faith, ill will and financial advantage as factors
influencing the decision of DEC to terminate its services. While the defendant
does little or nothing in opposing the cross-motion to provide detail or insight
into the reasons underlying its actions it is claimant's initial burden to
establish its right to judgment as a matter of law and the proof submitted in
support of the cross-motion is entirely inadequate for this purpose.
Accordingly, the defendant's motion and the claimant's cross-motion are