SIGMA EQUIPMENT v. THE STATE OF NEW YORK, #2007-015-564, Claim No. 110965
Claim alleging breach of contract in failing to pay for soap-making equipment
and certain additional work was dismissed following trial. Claimant failed to
prove that equipment met the production specifications in the contract.
SIGMA EQUIPMENT CORPORATION
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Hass & GottliebBy: Lawrence M. Gottlieb, Esquire
Honorable Andrew M. Cuomo, Attorney General
Michael W. Friedman,
EsquireAssistant Attorney General
October 16, 2007
See also (multicaptioned
This claim alleging breach of contract in failing to pay for soap-making
equipment and certain additional work proceeded to trial on April 25,
Claimant's first witness was Mr. Edward D'Errico, President of Sigma Equipment
Corporation, a manufacturer and designer of machinery used in the production of
healthcare and cosmetic products. He also founded in the 1980s a company known
as Sigma Engineering which no longer existed at the time of trial but was
originally formed to provide consulting services.
Mr. D'Errico first explained the various machinery which constituted the Great
Meadow Correctional Facility soap line his company contracted to sell and
install. Referring to Exhibit 1, a floor plan of the soap line to be installed
at Great Meadow Correctional Facility, Mr. D'Errico described the soap-making
process as beginning in a machine known as a bulk unloader which lifts large
sacks of raw soap material which it empties onto a screw conveyor. The conveyor
feeds the product into a mixer where the raw material is combined with
fragrance, antibacterial agents and other additives. The resultant mixture is
then transported from the mixer to a machine known as a simplex refiner via an
incline conveyor. The conveyor deposits the material into the simplex refiner
which refines and homogenizes the product. The soap mixture is then taken by
conveyor to a duplex plotter where it is further refined and then dropped into a
second stage which extrudes the product in a manner described as a "giant pasta
maker" (Tr.1, 23)
. The extruder produces a
long continuous bar of soap known as a billet. The billet is passed through a
cutter which separates the billet into individual foot-long bars of soap. These
bars continue through a diverter conveyor which is designed to prevent the bars
from proceeding into the soap press in the event of a blockage in the press.
As described by Mr. D'Errico "you don't want everything coming to a dead halt.
So to keep everything moving you have this um, link which will knock the pieces
off, until they're ready to start the soap press" (Tr.1, 24). If not diverted
the bars continue through the diverter conveyor until they reach a stamping
machine containing custom made dies where individual three-inch or one-inch bars
of soap are produced. The soap line installed at Great Meadow Correctional
Facility also included two low temperature chillers. The first addresses the
potential for soap to stick to the die contained within the stamping machine by
cooling the die to a low temperature. The second chiller services the simplex
refiner and duplex plotter.
The witness estimated that his company had produced approximately one dozen
complete soap lines prior to the one at issue herein. He estimated that the
largest soap line his company had produced would process at maximum three
thousand pounds of soap per hour. The following colloquy then took place:
Q. And how do you measure that?
A. Uh, well we uh, you just, you just weigh, you just um, uh, hold a container
over the output and you time it for a minute or um, whatever it happens to be.
Weigh the container and that's how uh, you know how fast it's going.
Q. When you say the output, is there certain perti, is there a particular place
in the line where that output is, is generated?
A. Well, yes, typically that's at the end of the um, duplex plotter. At the
end of that uh, extruder, you would um, you have material coming out of there
and you would weigh it and for, uh, whatever particular period of time. Let's
say a minute. And then you just multiply and that's how you'd get the pounds
per hour (Tr.1, 41, 42).
Mr. D'Errico testified that sometime during late 2001 or early 2002 he received
an invitation for bid regarding bar soap equipment to be purchased by Great
Meadow Correctional Facility (Claimant's Exhibit 4). He testified that he
visited the site where the machine was to be located both prior to receiving the
invitation for bid as well as following its receipt. While at the site he took
dimensions, reviewed the site and discussed the layout of the soap line.
Thereafter he prepared and submitted an original drawing together with his bid,
which was accepted by the State of New York.
When asked whether the bid specifications indicated a required capacity for the
soap line the witness referred to the following paragraph contained on page five
within Exhibit 4:
LOT 1 - BAR SOAP MANUFACTURING LINE
It is the intent of this specification to cover and include each item of
equipment; all engineering; supervisory services; training; and all actions
necessary to put into service in proper operating condition a Bar Soap Line,
capable of processing a minimum of 2,000 lbs. of soap (approx. 10,660 3 oz. bars
per hour) at 80% or less than maximum capacity.
Mr. D'Errico defined the term throughput (also referred to as "output" at
trial) for purposes of a soap line as meaning the capacity of the line or the
amount of product it produces. In the instant matter output is defined in terms
of pounds per hour as well as (parenthetically) the number of three- ounce soap
bars produced per hour. According to Mr. D'Errico, when measuring output in
terms of pounds produced per hour material coming out of the duplex plotter
would be emptied into a container for a certain period of time, for example one
minute, and would then be weighed and extrapolated to an hourly rate. He
testified that production is also measured by counting the number of cycles or
strokes of the stamping machine which occur during one minute. Since the soap
line installed at Great Meadow Correctional Facility produced four soap bars per
stroke, an hourly production rate can be determined by measuring the number of
strokes per minute and multiplying the number by 60. The bid documents required
two separate sets of soap dies, one for three-ounce bars and another for
Regarding the machinery which composed the completed soap line, Mr. D'Errico
testified that Sigma Equipment Corp. manufactured the mixer, simplex refiner,
duplex plotter, soap billet cutter and soap press. The dies, interconnecting
conveyors, chiller units and super sack discharge system were produced by other
manufacturers. The dies used in stamping soap bars were produced by SedTec
Corporation and were similar to die used in a similar soap line already in place
at Great Meadow.
A purchase order dated May 17, 2002 authorized the expenditure of $428,900 for
the design, delivery and installation of a bar soap manufacturing line at Great
Meadow Correctional Facility (Exhibit 7) . Shortly following receipt of the
executed purchase order Mr. D'Errico made his third trip to Great Meadow
Correctional Facility to double check the rough dimensions contained in the
proposed drawing submitted with his bid. According to the witness delivery was
to be complete within 9 months of the signing of the purchase order. With
regard to the issue of delay, counsel for both parties stipulated on the record
that the equipment was delivered 16 months late, the first 8 months' delay being
attributable to the State and the second 8 months to the claimant. Referring to
the eight month delay in delivering the equipment for which the claimant was
responsible Mr. D'Errico stated: "Well, um it's my own fault um, obviously. I,
I uh, guess in hindsight, I should never have agreed to delaying the original 8
months. Because I soon realized that I needed to get uh, other work . . . And
so, quite simply, I had to start working on uh, other jobs" (Tr.1, 75-76).
During that eight month period the State never indicated at any time that it
intended to cancel the contract.
Actual delivery of the soap line equipment began in the late summer or early
fall of 2004. Three or four separate deliveries of equipment from suppliers who
shipped directly and equipment manufactured by the claimant were required.
According to the witness all of the machines required under the contract, other
than a platform which was delivered later, were actually delivered to Great
Meadow Correctional Facility by September or October 2004. Once all of the
equipment was received, riggers hired by the claimant moved the machines to the
area where the soap line was to be installed. The equipment was then arranged
sequentially although in a manner different than that proposed by the claimant
in the original drawing submitted with the bid. As described by the witness,
the original configuration contained a single turn. He testified that he was
requested to change that configuration to one which contained two turns. He did
not identify the individual requesting the change but stated that the new layout
created interference involving the mixer cover and the arms of the bulk
unloading machine. A change in the location of the bulk unloader caused one of
the arms used to lift bags of raw soap to strike a column. This issue was
addressed by installing a stop which shortened the stroke of the arm by
approximately 1/2 inch.
Mr. D'Errico testified that the soap line was fully installed and functioning
in November 2004 and that the machines operated without problems. Tests showed
the capacity of the machines to be in excess of 2,500 pounds per hour. The
witness stated that in his experience a newly installed soap line always
requires adjustments during its initial operating phase. In this case initial
start-up of the soap line resulted in various adjustments and the need to
replace one motor. Changes were also required with regard to the bulk
unloader. According to the witness the specifications required that the bulk
unloader be able to accommodate 35-inch square by 55-inch high bags of raw soap
material. Because the bags actually used at Great Meadow were larger than 55
inches high, between 65 and 68 inches according to the witness, the frame of the
bulk unloader had to be extended an additional 17 inches.
Additional changes not required or addressed in the specifications were
discussed in a meeting in November 2004 involving Mr. D'Errico, Pamela White of
the Department of Correctional Services Division of Industries and
representatives of Great Meadow Correctional Facility. The document marked as
Exhibit D within Exhibit 12 in evidence is a letter by Ms. White relating Sigma
Equipment Corp.'s agreement to complete ten specific items of additional work by
December 22, 2004. The witness testified that none of the items related in the
letter were part of the original specifications. He further testified that the
line as designed and installed was not automated and required the presence of
operators at each of the machines. He was, however, at some point requested by
Kenneth McKeighan to fully automate the soap line between the mixer and the
duplex plotter so that if there was a stoppage on one of the machines the prior
machine would shut off and then turn on again once the blockage was
The witness went on to testify that the training required in the specifications
was conducted primarily by Richard Mallet, a Sigma Equipment Corp. employee,
during January and early February 2005, although he too provided some
instruction. Following the completion of training Mr. D'Errico again visited
Great Meadow Correctional Facility. He testified that the soap line was
installed and operational at this time although he did acknowledge that one of
the chiller units had developed a leaky seal which he described as "just a few
drips coming out of a connection" (Tr.1, 151). The defective seal was replaced
with a new seal delivered from the manufacturer.
Mr. D'Errico's next involvement with the Great Meadow Correctional Facility
soap line involved a conversation with Nancy Abraham, whom he described as a
purchasing agent for the State of New York in which Ms. Abraham complained that
the soap line was not working properly. A follow-up meeting involving the
witness, Richard Mallet, Kenneth McKeighan, Dale Sperl, Gary Ramey, Ben Van
Guilder, Nancy Abraham and Pamela White was held at Great Meadow Correctional
Facility on February 28, 2005. Ms. White and Ms. Abraham represented the
purchasing division of the Department of Correctional Services Division of
Industries. Mr. Ramey (Industrial Superintendent), Mr. McKeighan (Assistant
Industrial Superintendent) and Ben Van Guilder, the individual charged with
supervising the soap line, represented Great Meadow Correctional Facility.
During the meeting the group went to the area where the soap line was located
and observed its operation. Although the machines were not operating when they
arrived, the soap line was started by Richard Mallet and ran without problem or
incident for between one and two hours. The meeting was then reconvened and Mr.
D'Errico was informed that the State would be invoking a 1.5 % penalty due to
the late delivery of the soap line equipment. It was agreed that the machines
would operate for one month and that Sigma Equipment Corp. would have an
individual representative on site each day. According to the witness, the
State asserted that the soap line was not operating properly while his
technician on the scene, Mr. Mallet, stated that they were working fine.
According to Mr. D'Errico, the parties agreed to maintain joint notes regarding
the operation of the soap line in order to resolve the dispute. If not taken
jointly, it was determined that Corcraft representatives would sign off on notes
taken by Sigma Equipment Corp. Mr. D'Errico prepared a form to be used in
maintaining daily notes regarding the soap line "[s]o that, we would at the end
of the month, both uh, figuratively and literally, be reading off the same page"
(Tr. 1, 164). Each sheet contained boxes at the top labeled "Up Time", "Down
Time (Labor)", "Down Time (Mech.)" and "Down Time (Oper.)". The form was faxed
to Great Meadow Correctional Facility the following day.
The witness acknowledged that these boxes were not generally utilized during
the note taking process. He identified Exhibit 17 as containing notes taken
each work day during a thirty day period beginning on March 1, 2005. The notes
were completed by Richard Mallet between March 1 and March 11, 2005; and by the
witness from March 14 through March 25, 2005.
The witness first referred to the notes dated March 14, 2005, the first page of
which contains the initials of both the witness and Dale Sperl. He addressed
various entries relating to soap temperature on March 14, 2005, stating that he
had been informed that the temperature of the soap was too high and was
affecting the quality of the product. According to the witness, the
temperature of the soap will affect operation of the soap- making machines but
"doesn't hurt the physical product" (Tr. 1, 170). Optimum temperatures are
normally between 95 and 105 degrees. In an effort to address the issue Mr.
D'Errico "started playing around and lowering the chiller temperatures to
perhaps put more cooling water on, onto this machine" (Tr. 1, 171). Working on
the chillers to manipulate temperature, Mr. D'Errico testified that he realized
the following day that there were no problems with the temperature of the soap
as he had been informed.
The witness testified that Dale Sperl placed his initials in the appropriate
box at the top of each page of notes taken while Mr. D'Errico was on site at the
facility between March 14 and March 25, 2005. During this time the press was
consistently set between 44 and 46 strokes per minute. Each stroke resulted in
the production of 4 bars of soap. According to his computations, 45 strokes per
minute would result in a total production of 10,800 soap bars per hour or 2,025
pounds of finished soap. At a meeting involving Mr. D'Errico, Kenneth
McKeighan, and Gary Ramey, the witness was informed that the State was
maintaining notes detailing the amount of product being placed into the soap
line in order to determine throughput. According to the witness:
I was calculating the strokes per minute of the press and just as we figured
out what that translates into, and you know, in terms of weight and pieces per
And they were calculating how much raw material they were putting into the
machine, in the beginning, in the, where the mach, were the materials first fed
into this whole line of machines (Tr. 1, 183).
The parties discussed the potential for bringing in an independent industrial
engineer to resolve this issue of how best to measure the performance of the
soap line. Mr. D'Errico testified that a Mr. Kono came to examine the line on
Monday, March 21, 2005. Although the machines were operating when Mr. Kono
arrived, there was a subsequent breakdown which the witness attributed to a
failed shear pin. Mr. Kono returned to Great Meadow Correctional Facility and
observed the soap line running for approximately one hour on March 25, 2005. A
meeting was held later that day involving Mr. D'Errico, Mr. Kono, Mr. Sperl and
Kenneth McKeighan in which various issues affecting the operation of the soap
line were discussed. According to Mr. D'Errico, no one advised him that the
machine was not meeting throughput requirements or otherwise failed to conform
to the requirements of the specifications. The following week Mr. Mallet
returned to Great Meadow Correctional Facility to fix various aspects of the
soap line, including a leaking seal on the chiller, replacement of a motor on
the bulk unloader and inspection of a noise produced every fourth cycle of the
stacking machine which, according to the witness, "turned out to be uh, not
anything wrong, just normal workings of the machine" (Tr. 1, 200).
Mr. D'Errico's attention was next turned to the fourth page of Exhibit 12.
This document appears to have been created by employees of the defendant and
lists various deficiencies in the soap line equipment provided by the claimant.
The document also contains throughput calculations for the period March 11, 2005
through March 30, 2005 "based on the material being added at the blender as the
unit is equipped with scales and is capable of accurate accounting for the
amount of material being processed through the machinery". When asked to
identify which of the 37 individual deficiencies noted in the document were
attributable to flaws in the machinery provided by the claimant, Mr. D'Errico
cited only the replacement of a nose cone and a switch on the duplex plotter.
Addressing certain of the alleged deficiencies the witness testified that the
entry relating to default overloads in the simplex and duplex plotters was a
result of workers introducing cooling water too early in the machine start-up
process. He also disagreed with the entry which indicated "coolant control to
simplex and duplex difficult/impossible to control (ongoing problem)". With
regard to the entry stating "soap press regularly jams/double stamps, reducing
possible throughput" the witness testified that double stamping is a common
occurrence during the operation of a soap press. Mr. D'Errico testified that
the entry relating an intermittent screeching sound emanating from the soap
press was addressed by tightening the machine's "V" belt. Finally, he testified
with regard to an entry relating that a Great Meadow employee received a
90-volt electric shock from an exposed clutch brake assembly inside the stamper
that the individual had previously been given instructions regarding the
presence of an electric clutch.
Mr. D'Errico testified that Sigma eventually removed its equipment from Great
Meadow Correctional Facility and undertook efforts to re-sell the equipment.
After contacting half a dozen dealers the equipment was purchased by Sicomin
Chimie for $200,000 (Exhibit 20). He identified Exhibit 21 as an invoice sent
by the claimant to the New York State Department of Correctional Services for
work performed under the contract. He also identified Exhibit 22 as a second
invoice in the amount of $5,950 for additional extra work requested by the
On cross-examination Mr. D'Errico testified that his company had delivered soap
lines similar to the one installed at Great Meadow Correctional Facility to the
States of California, Pennsylvania and the Unilever Company. The claimant
corporation also supplied an integrated soap line to the State of Texas, which
was installed in a Texas correctional facility and later removed after the State
refused to pay as a result of complaints regarding poor performance of the
equipment. That soap line equipment was later resold to Sicomin.
The witness was referred to a document labeled Exhibit D within Exhibit 12 in
evidence, correspondence from Pamela L. White to Edward D'Errico dated November
24, 2004. The letter relates that it is intended to confirm Mr. D'Errico's
agreement to complete ten specific items of work by December 22, 2004. The
first item provides for the addition of 171/2- inch stubs to the frame of the
bulk bag lifter. The witness explained that the 171/2-inch increase in the
height of the bulk bag lifter was required because the specifications
incorrectly stated that the frame of the super sack discharge system should be
designed to handle 35-inch square by 55-inch high bags of raw soap product. He
testified that although the bags used at Great Meadow Correctional Facility in
fact measured 55 inches high, the actual height of the bags was greater than 55
inches because the bottom would bulge or sag when lifted from the ground for
insertion into the system. Mr. D'Errico stated that he was unaware of this
circumstance at the time he designed the soap line.
The second item of work related in the letter of November 24, 2004 provides for
the installation of a stop on a piston which drives the bag lifter arm to
prevent it from coming in contact with a wall. He described the contact between
the piston and wall as slight and stated that it would not have an effect on the
operation of the machine. Nor would production or output be impacted by the
third and fourth items regarding a clean-out door on the side of the
mixer/amalgamator and the addition of quick connects to electrical boxes on the
conveyors. In fact, the witness testified that none of the remaining items of
work would affect production capacity of the soap line. He testified, however,
that the final item regarding movement of the water lines to the simplex refiner
and duplex plotter were the responsibility of the claimant for its failure to
provide proper instruction regarding connection of the plumbing line. Mr.
D'Errico testified that the Great Meadow Correctional Facility's soap line was
completely installed and operational in early February, 2005.
The witness agreed that pursuant to the specifications of the contract, the
claimant corporation was required to provide engineering services and worker
training. Although both the witness and Richard Mallet conducted training of
soap line workers, no records were maintained regarding the times and dates
instruction was provided. Training consisted of general instruction regarding
operation of the machines as well as potential problems which might arise during
the soap-making process. The Sigma Equipment Corporation soap line was
installed in the same room as an existing soap line at Great Meadow Correctional
Facility. The witness acknowledged that, as a result, the ambient temperature
would be the same relative to both soap lines. He also stated that he presumed
that the same raw material was used in both soap lines.
Between November 24, 2004 and early March 2005, Richard Mallet was at Great
Meadow Correctional Facility working to complete installation of the soap line.
Mr. D'Errico visited Great Meadow Correctional Facility occasionally during the
same time period. Mr. D'Errico testified that the soap line first processed
soap products some time during December, 2004. He confirmed that the
specifications required that the soap line process a minimum of 2,500 pounds per
hour at 100% capacity or 2,000 pounds per hour at 80% capacity. He stated that
the soap line operated at the required minimum capacity between November 24,
2004 and February 2005 although Sigma Equipment Corporation did not maintain
production records during that period and he could not identify the precise
dates that the soap line produced the required capacity or how many days during
the subject period the soap line actually operated. The witness also discussed
the contents of an e-mail dated November 16, 2004 (see Exhibit 12). He
testified that the work or parts listed in the e-mail were delivered or
completed by February 17, 2005.
As a result of a meeting held on February 28, 2005 Sigma Equipment Corporation
agreed to have a representative on site each workday during March 2005. Richard
Mallet was present at Great Meadow Correctional Facility every work day except
one for the first two weeks of March 2005 and Mr. D'Errico was present for the
last two weeks of the month beginning on March 14, 2005. While at the site
D'Errico monitored the running of the soap line as well as provided additional
training to certain of the inmates. Notes produced by both Mr. Mallet and Mr.
D'Errico each day they were present at Great Meadow Correctional Facility during
March 2005 are contained within Exhibit 17. Although he acknowledged that the
entries for March 14, 2005 were in his handwriting, he could not identify, as
written by his hand, the last note on the second page indicating the day's
production of 29,400 soap bars.
A note relating activities during March 16, 2005 indicates at the end a total
daily production of 7,500 pounds of soap. The witness testified that the
specifications required the production of 2,000 pounds of soap per hour (80%)
and acknowledged that he failed to enter any information in the boxes provided
at the top of the form for recording downtime as attributable to labor,
mechanical issues or operational issues. With regard to the broken shear pin
discussed earlier in his testimony and which is referenced in the notes for
March 21, 2005, the witness testified that Mr. Van Guilder improperly adjusted
the stamping dies on Thursday March 17, 2005. He acknowledged that the notes
maintained for that date do not relate that Mr. Van Guilder adjusted the dies.
Mr. D'Errico testified that he had been involved in adjusting dies but that he
was last involved in such work several days prior to Thursday, March 17, 2005.
The broken shear pin prevented operation of the soap line for the remainder of
Monday, March 21 and Tuesday, March 22, 2005. The shear pin was replaced on
Wednesday, March 24, 2005. The witnesses' last day at Great Meadow Correctional
Facility was March 25, 2005.
On redirect examination the witness testified that the bulk unloader actually
supplied to Great Meadow Correctional Facility would accept bags up to 65 inches
high as a result of an additional allowance built into the design of the
machine. He stated that although the stairs and platform for the duplex plotter
were not delivered until February 2005, the machine was operational even without
these items. He also related that Great Meadow Correctional Facility staff had
agreed to the delay in delivering the stairs and platform.
The witness was next referred to his note of March 14, 2005 contained within
Exhibit 17. Specifically, when asked if he knew whether the 29,400 bar total
related on page two of the March 14, 2005 note referred to one-ounce or
three-ounce bars the witness stated: "I believe, not the ounce, no" (Tr. 2,
. He went on to explain that four
three-ounce bars are produced for each stroke of the stamping machine, resulting
in a total of 12 ounces of soap per stroke. One-ounce bars are produced in
five-bar increments, resulting in a total weight of five ounces per stroke of
the stamper. After reviewing his notes Mr. D'Errico estimated that the soap
line was in operation a total of four hours on March 14, 2005. He testified
that soap production begins slowly following the initial start and subsequent
restarts of the machinery before it reaches a steady production level.
Mr. D'Errico testified that between March 14, 2005 and March 25, 2005 he
measured production of the soap line in the following manner:
So, we decided to stand on the machine and count the number of stamps. And in
certain times like for example the 29,000 bars, that's not anything I verified.
That's something that was told to me, write it down. But I did not
independently verify that.
I verified standing at the machine or being in the vicinity of it lets say, all
day long and watching that machine go between 44 to 46 strokes per minute for a
3[-]ounce bar. And nobody changed that except me. Nobody changed that. So, if
it was set one day, it's set the next day. Every single day 44 to 46 strokes a
minute and that's how much that conveyed (Tr. 2, 138).
The witness testified that the operation of the machine at between 44 and 46
strokes per minute would meet the production requirements in the
Mr. D'Errico testified that he analyzed production according to the number of
strokes the stamping machine executed per minute in order to determine the net
amount of soap production. He explained that soap bars are stamped from larger
pieces of soap resulting in additional or leftover soap which is recycled back
into the production process. He equated the number of bars produced to the
number of strokes which the stamping machine was set to produce per minute. He
stated that a stroke-per-minute rate is stated only on some of the notes for the
period between March 1, 2005 and March 25, 2005 because once set, the rate of
strokes per minute would remain constant until changed or altered by either the
witness or Mr. Mallet.
The witness testified that the temperature of soap entering the stamper is not
a critical element in the soap-making process. However, if the soap being
stamped becomes too hot the incidence of double stamping and press jams
increase. In his view soap temperature should not affect the production of the
soap line installed at Great Meadow Correctional Facility. With regard to the
use of valves to address soap temperature, which he had discussed on direct
examination, the witness testified that the valves can be manipulated in various
ways, either fully or partially open, during the early stages of starting or
restarting the equipment.
On re-cross-examination the witness testified that the soap press does not
contain a counter indicating the number of strokes occurring per minute. To
determine the number of strokes per minute he simply visually observed the
actual number of strokes which occurred during a one minute period as measured
by his personal wristwatch. According to the witness, the number of strokes
per minute would be re-checked during the day although he possessed no records
demonstrating that the number of strokes-per-minute were checked more than once
. Relative to the notes contained in
Exhibit 17 the witness testified that although no stroke-per-minute count is
indicated in his note of March 14, 2005, the number of strokes would have
remained the same as indicated in the previous day's note of March 11, 2005. On
those other days where a stroke-per-minute count is indicated, the witness
testified that he did not have any additional records which would confirm
additional counts other than those indicated in the daily notes. According to
the witness, Dale Sperl initialed each day's time sheet to confirm that the
information contained on the sheet was correct. Mr. D'Errico used no other
methodology for measuring soap line production other than the number of strokes
per minute because "it was the singular way. He had to pick one singular way of
doing it. Because, therein lyed [sic
] the um, the um, um disagreement,
on who was counting what" (Tr. 2, 160).
Richard Tokosh was called as an expert in soap making and provided a general
overview of the soap bar manufacturing process. Mr. Tokosh acknowledged that he
had never been to Great Meadow Correctional Facility nor had he ever seen the
facility soap line in operation.
Claimant's next witness was Richard Mallet who testified that he was employed
by Sigma Equipment Corporation from January 2003 to October 2006. Mr. Mallet
testified that he was involved in both the manufacturing and wiring of the
equipment which composed the Great Meadow soap line, which he asserted was
tested to determine throughput or capacity at a Sigma Equipment Corporation
facility prior to delivery. This testing determined that the equipment produced
approximately 3,000 pounds per hour at maximum capacity and approximately 2,400
pounds per hour at 80% capacity. Production was measured at a maximum speed of
70 strokes per minute.
The witness testified that he was involved in the installation of the soap line
at Great Meadow Correctional Facility. He described the first step of the
process as laying out the machinery on the floor of the area where the soap line
was to be installed. This was accomplished by taking measurements and working
off a set of plans he had been provided. He then met with an electrician to
determine the location of electrical lines and a plumber to determine the
location of cooling lines. The plumbing contractor also connected the two
chillers which were a part of the soap line. The next step in the installation
process involved running and testing of the machinery, including making all
final electrical connections. Once all plumbing and electrical work was
completed the system was tested by running material through the line. Although
certain problems were experienced while using older raw material, Mr. Mallet
testified that the soap line operated properly following a changeover to newer
materials used in an existing soap line at Great Meadow.
The witness testified that he first worked with an individual identified as
Kevin who was in charge of supervising the soap line on behalf of Great Meadow
Correctional Facility. This individual was replaced at a later date by Benjamin
Van Guilder. Numerous adjustments were required which the witness described as
normal. Changes required once the soap line began operation included final
alignments of the machinery and adjustments to height level, guides and rollers.
Mr. Mallet related that the speed of the stamper machine would be adjusted at
various times including, for example, during the warm-up phase when raw material
would flow through the system at a reduced rate. He related "you would either
decrease the speed or increase on start-up, to get more material pushing through
the machines" (Tr. 2, 219). Once a constant speed was achieved, no further
adjustments would be required. The Great Meadow Correctional Facility line was
set at a constant speed of 44 strokes per minute. The number of strokes per
minute was determined by manually counting the revolutions occurring per minute
as timed by the witness using his watch.
The witness testified that the soap line at Great Meadow Correctional Facility
became operational sometime during January, 2005. Mr. Mallet testified that at
that time he confirmed throughput of soap material by removing the soap line
cutter and placing a barrel at the duplex machine for one minute. The soap
which fell into the barrel was taken to a scale and weighed. Three tests
conducted during a single day confirmed that the soap line output met the
requirements of the specifications. Mr. Mallet testified that additional tests
were conducted at other times on various dates which he could not recall.
Throughput and the amount of actual packaged product were also checked in the
first two weeks of March 2005. According to Mr. Mallet these checks confirmed
that the actual number of soap bars produced met the standard of 10,660 bars
per hour set forth parenthetically in the bid specifications. The witness went
on to describe the role inmates played in monitoring and operating the soap line
equipment including adjustments to the temperature of the coolant used in the
system. The witness described start-up procedures used each morning and stated
that the first item of work was to start the chiller and turn on the simplex and
duplex machines so that they could warm up for approximately 15 to 20 minutes.
While this work was performed a new batch of soap would be prepared in the
mixer. Product would be released and the production process would begin once
all of the machinery was on and warmed up. According to Mr. Mallet inattention
by inmate workers periodically allowed gaps to form as the raw material
proceeded through the system resulting in press jams. As a result Dale Sperl
and Ken McKeighan requested that the conveyors to the simplex refiner and duplex
plotter be modified to start and stop automatically. This was accomplished by
changes to the wiring inside the equipment control panels. According to the
witness, once the rewiring was accomplished the soap line operated without
incident. Mr. Mallet related other areas in which inmate worker errors affected
the proper operation of the equipment. Mr. Van Guilder also created problems in
the soap line's operation by his failure to properly cool the equipment.
According to the witness a meeting was held with representatives of the
Department of Correctional Services and Great Meadow Correctional Facility in
February 2005 to discuss resolution of issues affecting the soap line. Mr.
Mallet testified that it was agreed at the meeting that:
Um, yeah, that we would uh, we would um, take notes together and, and uh,
check our, check our notes back and forth between either myself, between myself
and the um, supervisors in the facility (Tr. 2, 246).
The witness next examined Exhibit 17, the notes maintained during March, 2005.
The witness testified that he was present at Great Meadow Correctional Facility
between March 1, 2005 and March 11, 2005. He stated that the entry for March
1, 2005 contains the initials of both himself and Benjamin Van Guilder, as do
the notes for March 2 and March 3, 2005. The notes for March 4, March 7, March
9, March 10 and March 11, 2005 contain the initials "DS" which the witness
identified as referring to Dale Sperl. Mr. Mallet testified that the soap line
was operating and producing according to specifications during the period March
1, 2005 to March 11, 2005. When asked how he knew that to be the case, Mr.
Mallet stated "Uh, based on the uh, based on the output at the end of the day.
What we had, uh packaged, material" (Tr. 2, 253).
The witness testified that he also visited Great Meadow Correctional Facility
on March 29 and March 30, 2005 to replace a defective pump seal on one of the
outdoor chillers. He estimated that he observed approximately one pint of the
glycol used in the chillers on the ground at that time. He also related that he
replaced a defective motor on the screw conveyor within the bulk unloader which
was causing faults and affecting production of the soap line. He testified that
both the defective seal and motor were replaced.
On cross-examination Mr. Mallet testified that the mixer, simplex refiner,
duplex plotter and stamping press were checked individually at a Sigma Equipment
Corporation facility prior to delivery to Great Meadow. Other than the notes
for March 1 through March 11, 2005 contained within Exhibit 17 the witness had
no other records memorializing his visits to Great Meadow Correctional Facility
or the work he performed. He testified that the soap line was operating
properly during a visit to Great Meadow sometime in January 2005 and that he
next visited Great Meadow Correctional Facility on February 28, 2005. The
witness was also present at Great Meadow during the period from March 1, 2005
through March 11, 2005 as reflected in his notes. These notes were entered on
forms provided him by Mr. D'Errico who instructed that he record those times
when "a product had been coming in and out of the machines, and, if there was
downtime due to um, the labor not being there, or what, downtime due to
mechanical problems or down, downtime due to operator error" (Tr. 2, 273- 274).
Mr. Mallet was not instructed to measure throughput based upon the number of
strokes per minute of the stamping machine but determined to utilize that
standard for determining throughput "because that's how you measure the, the
speed of the machine" (Tr. 2, 274). He did not express output in terms of
pounds per hour or the number of bars produced but rather extrapolated total
output based upon the number of strokes per minute during the time the machines
were in operation. He went on to testify, however, that although he noted the
number of strokes per minute at which the machinery was running he, in fact,
relied on information provided him regarding the actual number of boxes and
material packaged. According to the witness "I was told how many cases of soap
were packaged by the uh, inmates at the end of the day" (Tr. 2, 276).
With regard to his notes during March 2005, the witness agreed that he stated
the amount of total throughput in terms of the number of cases produced as well
as the number of strokes per minute on both March 1, 2005 (130 cases, 44 s.p.m.)
and March 2, 2005 (150 cases, 44 s.p.m.). He acknowledged, however, that the
notes for March 3, March 4, March 7, March 9, March 10 and March 11, 2005
provide no information regarding the number of pounds processed or soap bars
produced on those days. Other than the notes within Exhibit 17, the witness
stated that he made no other notes and possessed no other documentation
regarding throughput of the soap line during the month of March 2005.
On redirect examination Mr. Mallet testified that his notes from March 10 and
March 11, 2005 include entries noting the number of strokes per minute. He
stated that on those days he utilized the strokes per minute as the basis of his
determination of total soap line output.
The claimant rested its case upon the conclusion of Mr. Mallet's testimony and
the defendant moved to dismiss the claim for failure to establish a prima facie
case. The Court reserved decision on the motion.
The defendant called Dale Sperl as its first witness. Mr. Sperl testified that
he has been employed as a quality control supervisor at Great Meadow
Correctional Facility since approximately 2001. Prior to joining the staff at
Great Meadow, Mr. Sperl was employed as an industrial training supervisor at
Eastern Correctional Facility where he trained and supervised inmates at the
facility metal shop. As a quality control supervisor the witness testified that
he performs various functions relating to quality control issues at the Great
Meadow soap factory and at two plants which produce furniture, one at Great
Meadow Correctional Facility, and another at Washington Correctional Facility.
Prior to the installation of the soap line at issue in this matter, a separate
soap line was in operation at Great Meadow Correctional Facility. Mr. Sperl
testified that while not directly involved with the existing soap line he has
observed the operation and performed maintenance work on the constituent
machinery on a fill-in basis. The soap produced at Great Meadow Correctional
Facility is sold to other correctional facilities and various State or
Federally funded entities.
The witness testified that he first became involved with the Sigma Equipment
Corporation soap line in October, 2004. After that date he was at the soap
factory on a daily basis, sometimes for several hours and at other times for
much shorter periods. The Sigma Equipment Corporation soap line was installed
in an area identified as the soap factory where an existing soap line was
already in operation. The soap lines were adjacent to each other and utilized
the same raw materials. Mr. Sperl was involved in identifying certain problems
with the claimant's soap line as related in an e-mail communication dated
November 9, 2004 between Gary Ramey and Nancy Abraham (see document
labeled Exhibit A within Exhibit 12 in evidence). He testified that a
memorandum beginning on the page labeled "05" which is part of Exhibit 12
relates various deficiencies noted by Great Meadow Correctional Facility staff
with regard to the operation of the claimant's soap line. According to Mr.
Sperl, some of the issues related in the document were addressed by the
claimant although additional problems persisted, including jamming of the
equipment, double stamping and difficulty in maintaining an appropriate
temperature as the soap was produced. Mr. Sperl stated that the Sigma soap
line never produced soap at the rate required in the specifications. The
witness continued to be involved with the Sigma soap line through March 2005 at
which time he was asked to maintain daily notes regarding operation of the
system. He stated:
I did that just basically to keep track of things and how it was running. Uh
hem. We, we knew that there was a discrepancy as to how much soap it was
suppose to produce and in order to actually, you know, figure out whether or not
it was meeting specs I basically, you had to do it, in order to be able to
figure out how much time it ran during the course of a day and how many pounds
of soap that actually went into the equipment. (Tr. 3,
During March, 2005 Mr. Sperl observed the soap line and maintained daily notes
in addition to attending to his other duties. The notes, which are contained
within Exhibit C, begin on March 10, 2005 and are entered on a form provided to
Mr. Sperl by Sigma Equipment Corporation. On page two of the notes for March
11, 2005 Mr. Sperl noted a total amount of 5,293 pounds of soap used and an
approximate running time for the soap line of four hours and forty-five minutes.
Mr. Sperl testified that he had determined the total weight of soap used by
utilizing the scale which was a part of the bulk unloader. The next note,
pertaining to March 14, 2005, indicates a total of 7,168 pounds of soap used and
an approximate total run time of four hours and twenty
. The total weight of soap used was
again determined using the scale on the bulk unloader. On March 15, 2005 the
notes maintained by Mr. Sperl reflect a total of 5,460 pounds of soap used and
an approximate running time of 3 hours and 30 minutes. The same process of
using the bulk unloader scale to determine the total number of pounds of soap
used and identifying the amount of time during the day that the soap line was
producing product was reflected in the notes for March 16, March 17, March 18,
March 24, March 25 and March 30, 2005. The completed notes were provided to
The witness testified that he and representatives of Sigma present at the site
maintained separate notes regarding the operation of the soap line during March
2005. Mr. Sperl acknowledged that he initialed the notes maintained by Sigma
stating: "I just did it out of courtesy" and that he did not intend his
initialing of the notes to indicate the correctness of their content. Once the
note taking process was completed Mr. Sperl testified that he had no further
involvement with the Sigma Equipment Corporation soap line.
On cross-examination Mr. Sperl was questioned regarding his stated conclusion
on direct examination that the soap line never produced a minimum of 2,000
pounds of soap per hour. He was also queried regarding certain calculations of
total hourly throughput included in his notes of March 2005. In this regard, he
acknowledged his prior examination before trial testimony in which he stated
that he did not personally measure throughput but rather was involved in
tracking the amount of soap product used in the soap-making process each day.
Mr. Ramey and Kenneth McKeighan utilized the data produced by Mr. Sperl to
calculate actual hourly input.
The witness testified that each of the items noted in the correspondence from
Pamela L. White to Edward D'Errico dated November 24, 2004 were eventually
addressed by Sigma. These items reflect problems with the soap line which were
to be addressed and completed by Sigma by December 22, 2004. He went on to
testify regarding the effect temperature variations can have on the soap
production process and that each delivery of raw soap material is tested
primarily for moisture content, at either a lab located within Great Meadow
Correctional Facility or, occasionally, an outside laboratory.
The defendant called Kenneth McKeighan to the stand who testified that he is an
assistant industrial superintendent at Great Meadow Correctional Facility and
worked in that same capacity during the times at issue herein. Mr. McKeighan
testified that he works directly for Gary Ramey and is in charge of the
day-to-day operations of the Great Meadow Industrial shops.
The witness related that he was not involved in the day-to-day operation of the
Sigma Equipment Corporation soap line at Great Meadow Correctional Facility. He
did, however, prepare the detailed throughput calculations contained within
Exhibit 12 for the period March 11, 2005 through March 30, 2005 utilizing
information contained in the notes maintained by Dale Sperl (Exhibit C). In
describing his methodology Mr. McKeighan stated that he reviewed Mr. Sperl's
notes to determine the actual amount of time that the soap line was processing
soap each day. He then divided the total pounds of soap used that day as
indicated in the Sperl notes by the actual run time of the soap line to
determine the number of pounds of soap processed each hour. Based upon these
calculations Mr. McKeighan stated that actual throughput was below that required
in the specifications for each of the days analyzed.
Mr. McKeighan related that three-ounce soap bars are packaged in cases of 100
and 200 bars each. The witness was then referred to the second page of the
Richard Mallet note of March 1, 2005 which indicates total production of 130
cases over a total run time of 4 hours and 21 minutes. Based upon this
information Mr. McKeighan provided the following analysis (Tr. 3,
A. 26,000. 130 times 200, that's, start, uh . . . Ok, that's 26,000 bars,
given a nominal weight of 3 ounces per bar, which is 78,000 ounces. Divide that
by 16 ounces in a pound. It gives us 4,875 pounds of soap. And then I would
take 4., 4 minutes 21 - - -
Q. Four hours?
A. Four hours and 21 minutes which is, actually 4.35 hours, and I would divide
4,875 by 4.35 hours which give us a throughput of 1,120.6896 pounds per
Q. And, that's based on Mr. Mallet's entries, correct?
Q. Is that in conformance with the requirements of the specs?
A. No, it is not.
The witness performed a similar calculation for March 2, 2005. In his notes
for that day Mr. Mallet had indicated a total base production of 150 cases of
soap and a total run time of 4 hours and 50 minutes. Mr. McKeighan testified
that 150 cases contain 30,000 bars of soap, each of which has a nominal weight
of approximately 3 ounces, resulting in a total daily production of 90,000
ounces or 5,625 pounds of soap. Dividing 5,625 pounds by 4.833 hours of run
time produced an average hourly production rate of 1,163.8733 pounds. A similar
analysis could not be performed on other days in March, 2005 because the Mallet
notes did not provide information concerning the number of bars produced and
actual run times of the soap line
On cross-examination the witness confirmed that the throughput calculations
contained within Exhibit 12 are based upon information contained within Dale
Sperl's notes for March 2005. He did not independently confirm the run time
stated nor the amount of raw soap pellets used. As a result, he acknowledged
that he could not confirm that the soap line was producing three-ounce bars
between March 1 and March 7, 2005.
The witness acknowledged that a difference of opinion existed between Sigma
Equipment Corporation and the defendant in March, 2005 regarding the extent to
which the soap line was meeting the throughput standard established in the
specifications. He also acknowledged that Great Meadow arranged to have William
Kono review the operation of the soap line and evaluate whether it was meeting
the requirements of the specifications.
Consideration of all the evidence in this case leads the Court to conclude that
the soap line designed, engineered, manufactured (with certain exceptions) and
installed by the claimant failed to meet the following standard of performance
set forth in the detailed specifications contained in the Invitation for
It is the intent of this specification to cover and include each item of
equipment; all engineering; supervisory services; training; and all actions
necessary to put into service in proper operation condition a Bar Soap Line,
capable of processing a minimum of 2,000 lbs. of soap (approx. 10,660 3 oz. bars
per hour) at 80 % or less than maximum capacity.
In reaching this conclusion, the Court is mindful of both the broad
responsibility undertaken by the claimant (the specifications provide "[t]he
contractor will be responsible for the coordination of the entire project,
engineering, equipment/accessories; procurement and installation") and the
well-accepted tenet of contract construction that " 'when parties set down their
agreement in a clear, complete document, their writing should . . . be enforced
according to its terms' " (Vermont Teddy Bear Co. v 538 Madison Realty
Co., 1 NY3d 470 , quoting W.W.W. Assoc. v Giancontieri, 77 NY2d
157, 162 ). "Such agreements should be read as a whole to ensure that
undue emphasis is not placed upon particular words and phrases" (Bailey v
Fish & Neave, 8 NY3d 523, 528 ; see also Matter of
Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352 ). Interpretation
of the contract should not render any portion of the contract meaningless and,
to the extent possible, should give effect to its general purpose (Beal Sav.
Bank v Sommer, 8 NY3d 318, 324-325 ).
First, it appears from the proof at trial that various problems with the
operation of the soap line such as those related in the documents contained
within Exhibit 12 were ultimately resolved by the claimant. As a result, the
Court will not address the myriad issues discussed at trial in detail.
Both parties agree that the principal dispute between them was whether or not
the soap-making machine fulfilled the requirements of the contract
specifications regarding throughput. The claimant contended at trial that total
soap production should be calculated by multiplying the number of strokes per
minute at which the soap line was set to operate by the number of soap bars
produced per stroke. The product of these two factors would then be multiplied
by sixty to determine actual hourly production. The soap line did not include a
mechanism to either set the strokes per minute at a specific rate or to count
the actual number of strokes by some mechanical means related to the operation
of the system. Rather, the claimant determined the number of strokes per
minute, the most critical factor in the computation, by visually observing
the strokes occurring during one minute as measured using a simple wrist watch.
On those days where the notes of Messrs. D'Errico and Mallet specifically
reference the issue (March 1st, 2nd, 10th, 11th, 21st and 25th), the number of
strokes per minute is set forth only once each day. Despite testimony that
actual counts were taken more often, the documentation submitted does not
support that contention.
Claimant sought to support its utilization of the strokes-per-minute
methodology by reference to that portion of the contract specifications, set
forth above, which indicated parenthetically that throughput should equal
approximately 10,660 three-ounce bars per hour. It is clear, however, that the
contract, read as a whole, clearly and unambiguously required the soap line to
be installed at Great Meadow to have a throughput capacity of 2000 lbs. per hour
at or below 80% capacity. Not only is the number of bars per hour stated
-vis the 2000 lbs. per hour standard but it is the 2000 lbs. per hour
requirement which is referenced in the detailed specifications for the
mixer/amalgamator (Exhibit 4, p. 6), simplex refiner (Exhibit 4, p. 6) and
duplex vacuum plodder (Exhibit 4, p. 7). Only the specification for the soap
press was stated in terms of the number of soap bars per hour (Exhibit 4, p.7).
Nowhere do the detailed specifications measure the required throughput capacity
in terms of the number of strokes per minute.
Claimant's use of the strokes-per-minute methodology was undermined by Mr.
D'Errico's admission that he had in the past determined the throughput capacity
of other soap-making machines sold by his company by placing a container at the
end of the duplex plotter for one minute and weighing the output (Tr. 1, 42).
In addition, Mr. Mallet testified that after the machine was installed in
January of 2005 he tested the throughput capacity by placing a barrel at the
duplex plotter and weighing it on a scale located within the soap factory. Yet,
in March of 2005 when throughput capacity was being closely scrutinized in order
to determine whether or not the machine met the contract specifications,
claimant failed to make use of the soap factory scale to determine the number of
pounds per hour of throughput, instead inexplicably relying on a methodology
that it had apparently not followed in the past.
In March of 2005 under the threat of a contract cancellation there was great
impetus to carefully document the throughput capacity of the machine. In a
meeting convened in February of that year it was decided by those present,
including Mr. D'Errico for the claimant, that both parties would take notes
regarding the issue for a thirty-day period beginning March 1, 2005. The single
note produced by the claimant containing a reference to the number of pounds of
soap produced is that from March 16, 2005 which indicates "day's production 7500
lbs." Alternatively, the notes for March 1 (130 cases 4 hrs. 21 min.), March 2
(150 cases/4 hrs. 50 min.) and March 14, 2005 (29,400 bars) state the number of
. However, Mr. Mallet testified
that he relied upon information supplied to him by inmates in stating the
production totals in his notes of March 1 and March 2, 2005 and Mr. D'Errico
could not confirm that the total for March 14, 2005 is written in his
handwriting. In any event, Kenneth McKeighan testified convincingly that the
number of bars shown as produced on March 1 and March 2, 2005 do not meet the
throughput requirements of the specifications relative to the amount of
three-ounce soap bars to be produced per hour, either in terms of pounds and
The defendant provided detailed calculations of the number of pounds of soap
produced by the soap line from March 11 through March 30, 2005. These figures
are based upon measurements obtained from the scale with which the soap line was
equipped and reflect that, as Mr. McKeighan testified, throughput capacity for
the period fell well below the minimum required in the contract specifications.
The Court declines the claimant's invitation to extrapolate throughput capacity
based upon the number of strokes per minute when the defendant has supplied
uncontroverted evidence of the actual number of pounds of soap produced per
hour. This is especially true where, as here, the methodology used to determine
the actual number of strokes per minute was as sporadic and unscientific as that
testified to by both Mr. Mallet and Mr. D'Errico.
The Court cannot accept the proposition urged by the claimant that Mr. Sperl's
initialing of the notes taken by Mr. D'Errico and Mr. Mallet evinces the
defendant's tacit approval of the methodology they used to calculate throughput.
Mr. Sperl's testimony, which the Court finds credible, clearly reflects that
his initialing of the claimant's notes was perfunctory and not intended as a
validation of their content (Tr. 3, 40).
Lastly, the Court declines to draw an unfavorable inference based on the
defendant's failure to call Mr. Kono as a witness on its behalf. It is
settled that the mere failure to call a witness at trial, standing alone, is
insufficient to warrant an unfavorable inference (Eagle Pet Serv. Co. v
Pacific Empls. Ins. Co., 175 AD2d 471, 473 , lv denied 79
NY2d 753 ). To obtain the benefit of such an inference, a party must
establish "that an uncalled witness was knowledgeable about a material issue and
would be expected to testify favorably to the opposing party" (id. at
473). Claimant argues that an unfavorable inference is warranted since the
parties contemplated a consultation with an independent industrial engineer
regarding the manner in which the throughput capacity of the machine should be
measured. In fact, Mr. Kono was requested to and did briefly observe the
operation of the machine. Here, however, the contract clearly and unambiguously
required that the soap line produce 2,000 pounds per hour throughput at 80 %
capacity and no expert opinion is required nor appropriate regarding this
specification (see Bailey v Fish & Neave, 8 NY3d at 528 ["
'Whether a contract is ambiguous is a question of law and extrinsic evidence may
not be considered unless the document itself is ambiguous' " (citation
omitted)]). The throughput capacity is what the contract required and, in this
regard, the detailed specifications are unambiguous. Furthermore, there is no
basis in the record to find that Mr. Kono's testimony would be favorable to the
claimant. As a result, the Court finds that Mr. Kono's testimony was not
necessary to a resolution of a material issue and the claimant's request for an
unfavorable inference based on his failure to testify at trial is denied.
Consideration of all of the evidence in this case leads the Court to conclude
that the claimant failed to prove by a preponderance of the credible evidence
that the soap line installed at Great Meadow Correctional Facility met the
Regarding the claim for damages for additional work, the law is clear that
recovery can not be had for additional work which falls within the scope of the
contract (Van Deloo v Moreland, 84 AD2d 871 ). "[T]he general rule
is that where the contract is for construction of an entire work at a stipulated
price the contractor cannot recover for additional work or expense caused by
unforeseen difficulties or casualties" (Savin Bros. v State of New York,
62 AD2d 511, 516 , affd 47 NY2d 934 ). Where an inspection
of the premises is required under the contract and an appropriate inspection
would have revealed the true conditions which resulted in the need for the
additional work, recovery can not be had for additional work performed as the
result of the unforeseen condition (Warren Bros. Co. v New York State
Thruway Auth., 34 AD2d 97 , affd 34 NY2d 770 ;
Beltrone Constr. Co. v State of New York, 256 AD2d 992 ).
Here, the contract specifications required a pre-bid inspection of the site
(Exhibit 4, p. 4) and that the contractor undertake "all engineering;
supervisory services; training; and all actions necessary to put into service in
proper operating condition a Bar Soap Line . . ." (Exhibit 4, p. 5). The
specifications further required the contractor to "make a detailed survey of the
project site to determine the necessary facility modifications for the project's
installation" (Exhibit 4, p.5). This specifically included the layout of all
machinery, which was required to be submitted to Great Meadow Correctional
Facility for approval (Exhibit 4, p. 5). The additional work performed by the
claimant was necessary in an attempt, however futile, to make the soap line
equipment operational and meet the contract specifications. Due to the many
problems encountered in the operation of the system the defendant requested that
certain changes be made. According to Mr. D'Errico's testimony the
specifications were silent with respect to automation and the defendant later
requested automation between the mixer and duplex plotter and that certain
controls be relocated to where the mixer operator was stationed (Tr.1, 135, 140,
141). Mr. D'Errico testified that Mr. McKeighan requested that the soap line
should "cascade back" (Tr.1, 146). The lack of automation unreasonably required
an operator to be stationed at each machine and coordinate the operation of each
machine on every occasion there was a delay or stoppage so that one machine did
not continue to operate when another machine was stopped (Tr.1, 134, 139-140).
The other modifications to the equipment made at the request of the defendant
are stated in the letter dated November 24, 2004, which is included as a
part of Exhibit 12. The necessity for enlarging the size of the frame of the
bulk-bag lifter could have been avoided by appropriate pre-bid investigation and
inspection of the premises (see Beltrone Constr. Co. v State of New
York, supra). The same is true with respect to the adjustment to
the bag lifter massage arm so that it did not strike the wall. Although Mr.
D'Errico appears to contend that certain additional work was required due to a
change in the layout of the soap line requested by the defendant the proof is
otherwise wholly inadequate to support this contention. In the Court's view,
all of the adjustments requested were necessary to achieve minimal functionality
of the equipment. From a practical perspective, as evidenced by the poor
performance of the soap line, the machine was not functional without these
changes. Given the extremely broad scope of the claimant's undertaking , which
included project layout and design, recovery for the additional work claimed
is not warranted.
Based on the foregoing, the Court concludes that claimant failed to prove by a
preponderance of the credible evidence its breach of contract claim.
Accordingly, the claim is dismissed. All motions not heretofore decided are
Let judgment be entered accordingly.
October 16, 2007
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
.Numbers in parentheses preceded by the
designation "Tr. 1" refer to the page numbers of the transcript of the trial
testimony of April 25, 2007.
.Numbers in parenthesis preceded by the
designation "Tr. 2" refer to the page number of the transcript of the trial
testimony of April 26, 2007.
.The note for March 25, 2005 indicates 44
s.p.m. at 8:55 a.m. and 46 s.p.m. at 9:40 a.m.
.Numbers in parenthesis preceded by the
designation "Tr. 3" refer to the page numbers of the transcript of the trial
testimony of April 27, 2007.
.The notes for March 14, 2005 and subsequent
dates were not prepared using the form prepared by Sigma Equipment
.The D'Errico note for March 14, 2005
indicates a daily production of 29,400 bars but does not separately state the
actual run time of the machinery. The note for March 16, 2005 indicates total
day's production of 7,500 pounds of soap but does not separately state actual
.It is unclear whether the soap produced on
these dates was in the form of 3 oz. or 1 oz. bars. The specifications address
only the number of 3 oz. bars to be produced per hour.