New York State Court of Claims

New York State Court of Claims

SCALAMANDRE v. THE STATE OF NEW YORK, #2008-032-105, Claim No. 111020, Motion Nos. M-74279, CM-74441


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
Darrell W. Harp, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Cornelia Mogor, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 3, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court pursuant to CPLR 3212 for an order granting summary judgment as to liability on its claim. Defendant opposes the relief and cross-moves for summary judgment dismissing the claim.

The claim arises from a contract entered into in March 2000, between claimant and an agency of defendant, the Department of Transportation [hereinafter DOT]. The contract collectively contained four documents: the agreement, the proposal, the standard specifications and the plans, and required that claimant complete certain work on the Robert Moses Causeway located in the Town of Islip, Suffolk County by November 30, 2001, for a contract price of $4,407,259.20. The required work included the installation of scour monitors, deck spall repair, replacement of three bridge deck sections, minor steel repairs, waterproofing and overlaying bridge decks. The bridge deck consisted of individual spans separated by steel finger joints. Prior to waterproofing and the new overlay, steel plates needed to be welded to each finger joint so that the new overlay would provide a smooth riding surface.

The plans provided by DOT to claimant called for the use of circular plug welds on the steel plates of the joints. The plans also required that all welding procedures comply with the New York State Steel Construction Manual. Pursuant to the contract, in March 2001, claimant submitted shop drawings to DOT for approval, including the details of the welding procedure utilizing the plug welds. DOT's engineers reviewed claimant's welding procedure and determined that, although the plug welds conformed with the plans, they did not comply with the New York State Steel Construction Manual, which allows only boat welds for this type of procedure. Additionally, DOT determined that the plug welds could lead to cracking at the root of the joint.

On April 24, 2001, DOT approved an alternative procedure and advised claimant. Several days later, claimant notified DOT that this revised welding procedure would entail additional costs and DOT requested that claimant submit a proposal for the additional costs. Claimant's proposal, however, did not utilize the approved procedure. Claimant's proposed welding procedure was disapproved by DOT engineers because it was too time consuming and would not allow the project to be completed by November 30, 2001, as required by the contract. As such, DOT proposed an alternative method of completing the project which eliminated the welding and related work and, in September 2001, requested that claimant submit a bid for the performance of this alternative method. Claimant did not submit a new bid. Thereafter, DOT notified claimant that it deleted the overlay and welding portion from the contract. Ultimately, DOT included the revised bridge work in a later contract, in which claimant did not submit a bid.

As a result of the foregoing, claimant commenced this action and alleges that DOT misdesigned the welding plugs and, in redesigning the project to correct the misdesign, DOT eliminated substantial portions of the work to be performed by claimant, resulting in a lost profit to claimant of $480,502.34. After joinder of issue and completion of discovery, the parties brought these applications.

In support of its motion, claimant submits the affirmation of its counsel. He relies on his prior experience as counsel for DOT and affirms that he previously administered its contract claims. He further states that there are no contract specifications that allow DOT to delete substantial portions of a contract due to a misdesign without compensating the contractor. In opposition, defendant argues that claimant is not entitled to lost profits because the contract allowed DOT to omit work to be performed as long as the omission was reasonably necessary for the public good. DOT alleges the omissions were necessary because claimant declined DOT's alternative method and claimant's revised method did not allow for completion of the project by the contract completion date.

There is no dispute that claimant received payment for all of the work that it performed and the sole issue in this action and on these motions is whether claimant is entitled to be compensated for lost profits. It is also undisputed that the contract plans provided by DOT to claimant contemplated plug welds, and that these welds failed to conform to the New York State Steel Construction Manual.

Article 5 of the contract provides, however, that:

The State reserves the right, at any time during the progress of the work, to alter the plans or omit any portion of the work as it may deem reasonably necessary for the public interest; making allowances for additions and deductions with compensation made in accordance with the Standard Specifications, for this work without constituting grounds for any claim by the contractor for allowance for damages or for loss of anticipated profits [emphasis added].

Thus, pursuant to the contract's terms, DOT was empowered to alter plans or omit work, provided that such modification was reasonably necessary for the public interest. In interpreting omission clauses such as these, it has been stated that they protect the contractor from arbitrary, capricious or unreasonable action by the State (see Kinser Const. Co. v State of New York, 204 NY 381 [1912]).

The reason proffered by DOT for eliminating the welding and related work was that an alternative method was required so that the project could be finished prior to the end of the construction season in November 2001, as required by the contract. Initially, contrary to claimant's contention, the omission clause does not require that the alteration or omission cannot arise through any fault on behalf of the State. Although claimant certainly could have bargained for such language, it did not. Further, the Court determines that claimant is not blameless for the problem concerning the plug welds because the contract and specifications required that claimant carefully examined all contract documents prior to making its bid. Thus, to the extent that there was an inconsistency between the plans and the New York State Steel Construction Manual, claimant should have brought the inconsistency to DOT's attention for correction before bidding on the contract or, at the very latest, before submitting its shop drawings (Art 3 Contract/Specifications 104-03). Moreover, there is no allegation that DOT operated in bad faith and that the inclusion of the plug weld in the plans was anything other than a mistake, and pursuant to the specifications, the contractor cannot benefit from DOT's errors or omissions.[1]

To the extent that claimant argues that Peru Assoc.v State of New York (70 Misc 2d 775 [Ct Cl 1971]) compels a different result, the Court is unpersuaded. In Peru, defendant terminated the entire contract and there is no indication defendant alleged an omission clause such as is at issue here. As such, the Court determines that claimant has not established that it is entitled to summary judgment inasmuch as the contract allowed for DOT to omit work under certain conditions. Accordingly, claimant's motion for summary judgment is denied.

Concerning defendant's cross motion for summary judgment, based on the record, the Court concludes that there is a factual issue concerning whether eliminating the welding and related work was reasonably necessary to complete the work by the end of the construction season. Although DOT submits an affidavit by one of its engineers indicating that an alternative method was required to complete the work, the Court concludes that the engineer's affidavit does not provide any basis for the opinion and without more, it is insufficient to warrant summary judgment in favor of defendant.

Accordingly, claimant's motion for summary judgment and defendant's cross motion are denied.

July 3, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed December 3, 2007;

2. Affirmation of Darrell W. Harp, Esq. dated December 3, 2007 with annexed Exhibits;

3. Notice of Cross-Motion filed January 17, 2008;

4. Affirmation of Cornelia Mogor dated January 17, 2008 with annexed Affidavits and Exhibits;

5. Affirmation in Reply of Darrell W. Harp, Esq. dated January 23, 2008 with Attachment;

6. Reply Affirmation of Cornelia Mogor dated February 4, 2008;

7. Sur-Reply of Darrell W. Harp, Esq. dated February 5, 2008.

[1].Specification 105-03 provides, in relevant, part: the Contractor shall take no advantage of any apparent error or omission in the plans or specifications. In the event the Contractor discovers an error or omission in the plans or specifications, it shall immediately notify the Engineer.