New York State Court of Claims

New York State Court of Claims

SIGMA EQUIPMENT v. THE STATE OF NEW YORK, #2007-015-564, Claim No. 110965


Synopsis


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.

Case Information

UID:
2007-015-564
Claimant(s):
SIGMA EQUIPMENT CORPORATION
Claimant short name:
SIGMA EQUIPMENT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110965
Motion number(s):

Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Hass & GottliebBy: Lawrence M. Gottlieb, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 16, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This claim alleging breach of contract in failing to pay for soap-making equipment and certain additional work proceeded to trial on April 25, 2007.


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)[1]. 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

SCOPE:

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 one-ounce bars.

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 cleared.

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 hour.

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 State.

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, 133)[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 specifications.

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 each day[3]. 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, 20)[4].

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 minutes[5]. 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 Kenneth McKeighan.

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, 105-106):
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 hour.

Q. And, that's based on Mr. Mallet's entries, correct?

A. Yes.

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[6].

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 Bids:
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 [2004], quoting W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). "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 [2007]; see also Matter of Westmoreland Coal Co. v Entech, Inc., 100 NY2d 352 [2003]). 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 [2007]).

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 parenthetically vis-
à
-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 bars produced[7]. 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 bars.

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 [1991], lv denied 79 NY2d 753 [1992]). 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 contract specifications.

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 [1981]). "[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 [1978], affd 47 NY2d 934 [1979]). 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 [1970], affd 34 NY2d 770 [1974]; Beltrone Constr. Co. v State of New York, 256 AD2d 992 [1998]). 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 deemed denied.

Let judgment be entered accordingly.



October 16, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims




[1].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.
[2].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.
[3].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.
[4].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.
[5].The notes for March 14, 2005 and subsequent dates were not prepared using the form prepared by Sigma Equipment Corporation.
[6].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 run times.
[7].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.