New York State Court of Claims

New York State Court of Claims
LIBERTY MAINTENANCE v. THE STATE OF NEW YORK, # 2010-015-108, Claim No. 115228, Motion No. M-76979

Synopsis

Breach of contract claim was dismissed for failure to comply with the notice and reporting requirements for extra work, which were a condition precedent to payment. Causes of action for fraud, quantum meruit and unjust enrichment relating to claims for extra work, the payment for which was governed by the terms of a contract, were dismissed.

Case information

UID: 2010-015-108
Claimant(s): LIBERTY MAINTENANCE, INC.
Claimant short name: LIBERTY MAINTENANCE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115228
Motion number(s): M-76979
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Damon & Morey, LLP
By: Brian D. Gwitt, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Eidin Beirne, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 11, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves for summary judgment pursuant to CPLR 3212 dismissing the first, second, third, fourth, and sixth causes of action in the claim on the grounds that the claimant waived its breach of contract claim for extra work by failing to comply with the contractual reporting requirements and that the claims for quantum meruit, fraud, and unjust enrichment are barred by the existence of a valid contract covering the same subject matter. Defendant also contends that the third cause of action alleging fraud fails to state a cause of action because it alleges no legal duty independent of the contract itself.

Claimant and the defendant acting by and through the Department of Transportation ("DOT") entered into a contract dated March 10, 2003 (the"Contract") to "[p]aint and Seal Route 5 Sky Way Bridge and Interstate 190 Ramp over Erie Street in the City of Buffalo" (defendant's Exhibit C, Contract, p. 1). The work as described in the applicable specification consisted of "pressure washing, abrasive blast cleaning to remove all paint, rust, millscale, and other corrosion producing contaminants, and painting structural steel surfaces with three (3) full coats of new paint, where indicated by the Contract Documents" (defendant's Exhibit F, p. 1). Under the subheading "Commercial Blast Cleaning" this specification further required that "[a]ll surfaces shall have all paint, rust and rust scale, mill scale, and other corrosion producing contaminants removed by abrasive blast cleaning to bare metal in accordance with SSPC-SP 6, No. 6, Commercial Blast Cleaning" (defendant's Exhibit F, p. 3).

Claimant seeks compensation for extra work allegedly performed in connection with the removal of tightly adhering mill scale (the "mill scale claim") and roller nap from the Sky Way Bridge. With respect to the mill scale claim, claimant alleges that during the course of performing its work under the Contract it encountered tightly adhering mill scale which was an unanticipated condition. It alleges that the industry standard specified in the Contract, SSPC-SP6, is the inappropriate standard for removal of tightly adhering mill scale(1) , that the defendant knew of the condition of the mill scale prior to letting the Contract but failed to inform the claimant, and that the removal of this condition from the sky way constitutes extra work for which it is entitled to payment. The claim alleges, as pertinent here, the following:

"5. Removal of mill scale requires the use of pressurized sand blast units which 'blast' the mill scale from the steel to expose the underlying bare metal.

6. The standard nozzle-hour production rate for such work for SSPC-SP6, No. 6, Commercial Blast Cleaning, is 210 square feet per hour, and Liberty was therefore entitled to assume that the applicable nozzle-hour production rate for Item No. 158753.1015 would be no less than 210 square feet per hour.

7. Using a conservative approach to bidding on Item 158753.1015, Liberty used an estimated nozzle-hour production rate of 156 square feet per hour in compiling its successful bid for the Project work.(2)

8. SSPC-SP6, No. 6, Commercial Blast Cleaning, does not contemplate the removal of tightly adhered, intact mill scale which is expected with Rust Condition Grade A.

9. The actual site conditions encountered by Liberty in performing Item No. 15873.1015 was mill scale tightly adhered and deeply embedded in the substrate of the steel structure of the Route 5 Bridge consistent with Rust Condition Grade A.

10. The aforesaid unanticipated actual site conditions consistent with Rust Grade A required mill scale removal work which utilized far more labor, equipment time and abrasive materials than Liberty could anticipate at the time of bidding based on the DOT's representations relative to the nature of the work to be performed.

11. As a result of the aforesaid actual site conditions, the actual average rate of nozzle-hour production achieved by Liberty for Item No. 158753.1015 was dramatically reduced to 57.8 square feet per hour, or 37% of the conservative estimated rate included in Liberty's bid of 156 square feet per hour.

12. The dramatic increase of the labor and materials Liberty was required to expend to complete work Item 158753.1015 resulted in a 67% increase in Liberty's bid amount for labor, materials and equipment costs for the work at issue.

13. By reason of the aforesaid unanticipated site conditions resulting in extra work, Liberty sustained extra costs in the amount of $1,743,647.68 for labor, materials and equipment . . ." (defendant's Exhibit A, claim, 5 - 13).

The Contract's Standard Specifications contain disputed work provisions requiring both prompt notice of a claim for extra work and that the contractor "keep daily records and make reports of all labor, material and equipment used in connection with such work and the cost thereof as specified in 109-05C, Force Account Reports" (defendant's Exhibit D, Standard Specifications, 105-14 [C]). Pursuant to 109-05 [C] [1], payment for disputed work is based upon daily summaries provided by the contractor "not later than closing time on the day following that for which the work is reported." The daily summaries are required to contain a detailed list of materials, equipment and personnel as well as the work accomplished for the day. This section also requires that the daily summaries shall be "dated and signed by the Contractor's authorized representative and the Engineer-in Charge" (defendant's Exhibit D, 109-05 [C] [1]). In addition to the daily summaries, the Contractor is required to provide to the Engineer-in-Charge a Force Account Summary of Labor "[w]ithin 5 calendar days after the end of each pay period" (defendant's Exhibit D, 109-05 [C] [2]). Within ten calendar days of completion of the force account work, a Force Account Summation, dated and signed by the Contractor's authorized representative and the Engineer-in-Charge, is required to be provided to the Engineer-in Charge (defendant's Exhibit D, 109-05 [C] [3]). The Contract contains the following provisions with respect to these record- keeping provisions:

"The notification and record-keeping provisions in this Contract shall be strictly complied with for disputes of any nature and are a condition precedent to any recovery. This affords the Department the opportunity to initiate measures that will mitigate damages to all parties and/or to agree to terms and conditions for timely payment for any eligible added costs. . . If the Contractor fails to strictly comply with either the notification or the record keeping provisions of this section, any claim of the Contractor with respect thereto shall be deemed waived" (defendant's Exhibit D, 105-14).

Section 105-14 [C] similarly provides that "[f]ailure by the Contractor . . . to maintain and furnish force account reports for disputed work shall constitute a waiver of the disputed work."

The disputed work which is the subject of claimant's first cause of action for breach of contract - the removal of allegedly tightly adhering mill scale - commenced in April 2004 and ended in October 2004. While defendant does not dispute that timely notification of the claim for extra work was provided by letter dated May 10, 2004, it argues that dismissal of the breach of contract claim is required due to the claimant's failure to provide timely force account reports as required by the Contract. Defendant submitted in support of its motion an affidavit from Freddy Iuranich, the Engineer-in-Charge of the project, who avers that he "received no force account reports regarding this work from Claimant until March 1, 2005, well after the disputed work was completed.(3) Not only were the force accounts belatedly furnished, none was signed by, or on behalf of, Claimant" (affidavit of Freddy Iuranich, 17). It is undisputed that signed and dated force account reports were not provided to the defendant until 2007 during the course of pursuing the claim administratively.(4) Mr. Iuranich avers:

"By reason of the foregoing failure by Claimant to track its efforts and costs on a contemporaneous basis and to advise the State of same, State personnel on the project were unaware of discrete items of work upon which Claimant intended to base a dispute. As a consequence, State personnel did not confirm the specific hours, units, manpower, items of equipment, etc., allegedly attributable to the work items upon which Claimant intended to advance its dispute as that work was performed" (Iuranich affidavit, 19).

Mr. Iuranich provided the force account reports received in March 2005 to Paul Dudley, the chief inspector on the project, and requested that he review them in an attempt to reconcile the force account reports with the inspectors' daily reports of the work performed and the manpower and equipment used during the relevant period of time. Mr. Dudley avers in an affidavit submitted in support of the motion that his comparison of the force account reports with the inspectors' daily reports revealed "numerous instances of miscalculation and duplication" (Dudley affidavit, 8). Mr. Dudley also asserts that the method of calculating the extra work, which was based upon the overall production rate actually accomplished versus the estimated production rate based upon the SSPC-SP 6 standard set forth in the Contract, yields an unvarying rate of extra work which is unprecedented and a "clear departure from the requirements of the contract for the contemporaneous documentation of claimed extra work" (Dudley affidavit, 11).

Defendant's Motion For Summary Judgment On The First Cause Of Action For Breach Of Contract

The law is well-settled that strict compliance with the reporting provisions of municipal

contracts are conditions precedent to suit (A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20 [1998]). "Failure to strictly comply with such provisions generally constitutes waiver of a claim for additional compensation" (Fahs Rolston Paving Corp. v County of Chemung, 43 AD3d 1192, 1194 [2007]; see also Kingsley Arms, Inc. v Sano Rubin Constr. Co., Inc., 16 AD3d 813 [2005]; Promo-Pro Ltd. v Lehrer McGovern Bovis, 306 AD2d 221 [2003]; Sicoli & Massaro v Niagara Falls Hous. Auth., 281 AD2d 966 [2001]). Such provisions serve the salutary purpose of providing "public agencies with timely notice of deviations from budgeted expenditures or of any supposed malfeasance, and allow them to take early steps to avoid extra or unnecessary expense, make any necessary adjustments, mitigate damages and avoid the waste of public funds" (A.H.A. Gen. Constr. v New York City Hous. Auth. at 34; see also Huff Enters. v Triborough Bridge & Tunnel Auth., 191 AD2d 314, 316 [1993], lv denied 82 NY2d 655 [1993]). The Court of Appeals made clear in A. H.A. Gen. Constr. v New York City Hous. Auth. (supra) that the standard for excusing a failure to comply with the requirements of an exculpatory clause differs from that applicable to conditions precedent. Unlike exculpatory clauses, a condition precedent may only be avoided where the party relying upon the failure of another party to the contract to perform the condition precedent has, in fact, frustrated or prevented the occurrence of the condition. In A.H.A. Gen. Constr., the contractor argued that the authority had not required it to comply with the notice and reporting requirements in prior contracts between the parties and that the departure from prior practice constituted bad faith. The Court rejected the argument, holding that the public authority's alleged bad faith conduct does not act to excuse compliance with the contractual notice and reporting requirements for extra work stating "the relevant inquiry is not simply one of the [public authority's] bad faith or negligence in the performance of the contract but additionally whether the alleged misconduct prevented or hindered [the contractor's] compliance with the notice and reporting requirements" (Id. at 31).

In opposition to the instant motion, claimant does not dispute that the force account reports were delivered to the Engineer-in-Charge beyond the due date set forth in the Contract and subsequent to the completion of the work. Nor does it dispute that when the reports were first provided they were unsigned. Rather, claimant argues, first, that its failure to strictly comply with the Contract's terms should be excused because defendant's misconduct (bad faith) prevented strict compliance. The misconduct complained of, however, was the defendant's alleged misrepresentation in the contract documents that the appropriate blasting standard for the removal of mill scale was SSPC-SP 6, a standard which it contends was not applicable to removal of the adherent mill scale actually encountered on the site. Like the facts in A.H.A. Gen. Constr. (supra), claimant fails to explain how this alleged misrepresentation prevented or otherwise affected its ability to provide timely force account reports.

Claimant also argues that the following language in the Contract permitted late submission of the force account reports:

"4. In the event the contractor fails to deliver the required force account documentation to the [Engineer-in-Charge] within the time period specified in 109-05, subsection C, of these General specifications, and as a result the Order-on-Contract for the force account work is not fully approved at the date of final acceptance, the number of calendar days of the time period between final acceptance and the issuance of this force account Order-on-Contract, attributable to the Contractor's late force account submissions will extend the required payment date by an equal period of time" (defendant's Exhibit D, 109-05 [C] [4]).

Claimant's counsel contends that this language "plainly indicates that so long as the documentation is received before the date of the final acceptance of the Contract, the condition precedent has been satisfied" (Memorandum Of Law In Opposition To Defendant's Motion For Partial Summary Judgment, p.6). Such an interpretation if accepted, however, would render meaningless the preceding paragraphs setting forth in great detail the time requirements governing submission of the reports.

It is a well-accepted tenet of contract interpretation that "[w]here possible, a contract should be interpreted to avoid inconsistencies and to give meaning to all of its provisions, giving a practical and reasonable interpretation to the language employed and the parties' reasonable expectations with respect thereto" Malleolo v Malleolo, 287 AD2d 603-604 [2001] citing 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]; Queens Best, LLC v Brazal S. Holdings, LLC, 35 AD3d 695 [2006]; First Fed. Sav. & Loan Assn. of Rochester v Minkoff, 176 AD2d 1049 [1991]).

While claimant's counsel interprets 109-05 [C] [4] for the proposition that the condition precedent is satisfied so long as the reports are submitted before final acceptance of the project, nowhere in this paragraph does it say that. Rather, this section speaks to interest and the date from which it may be calculated in the event of a delay in the submission of the force account reports. In addition, such an interpretation would not comport with salutary purpose behind the requirement of strict compliance with the notice and reporting requirements for extra work, i.e., mitigating damages and conserving public funds. Consequently, the Court finds that nothing in 109-05 [C] [4] of the standard specifications alters or abridges those other specific provisions of the same specifications requiring timely compliance with the reporting requirements of the Contract.

Claimant next argues that compliance with the conditions precedent to suit were waived, citing various correspondence generated during the administrative dispute resolution process as well as internal correspondence among defendant's personnel which claimant obtained during the course of discovery.

As made clear by the Court of Appeals in Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P. (7 NY3d 96, 104 [2006]):

"Contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned . . . Such abandonment may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage . . . . However, waiver should not be lightly presumed and must be based on a clear manifestation of intent to relinquish a contractual protection. . ." ([internal quotation marks and citations omitted]; see also Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]; cf. Natale v Ernst, 63 AD3d 1406 [2009]).

Here, the correspondence on which the claimant relies to establish the existence of a waiver consists of letters from Frank Pezze of the DOT dated October 5, 2004 and February 7, 2007, claimant's submission of supplemental documentation on February 27, 2007 and internal emails among DOT personnel. The first letter from Mr. Pezze was written in response to the claimant's request for a meeting to resolve the disputed work issues and was written in October 2004, the same month claimant completed the work (claimant's Exhibit F). This letter requests "copies of any previous correspondence and pertinent documentation" (emphasis added). Nothing in this letter invites or requests the submission of late reports or evinces a manifestation of intent to waive the Contract requirement for the timely submission of signed force account reports (see Orange Steel Erectors v Newburgh Steel Prods., 225 AD2d 1010, 1012 [1996] ["the intent to waive a right must be unmistakably manifested, and is not to be inferred from a doubtful or equivocal act"]). The next letter from Mr. Pezze offered in support of the claimant's waiver argument schedules a meeting to resolve the disputed issues as required by the dispute resolution provisions of the contract (claimant's Exhibit I). Again, nothing in this letter evinces an intent to abandon the defendant's contractual right to the timely submission of signed force account reports. The next item relied upon by the claimant is its counsel's own submission of supplemental information relative to the claim (claimant's Exhibit J). Clearly, correspondence from the claimant or its counsel cannot effect a waiver of the defendant's Contract rights. Lastly, claimant points to emails between DOT personnel to substantiate the assertion that the claim remained under consideration (claimant's Exhibits L and M). None of this correspondence establishes a clearly manifested intention to relinquish a contractual right (see Morelli Masons, Inc. v Peter Scalamandre & Sons, 294 AD2d 113 [2002]; Kingsley Arms, Inc., supra). To the extent claimant cites defendant's alleged two-year delay in raising the issue of the timeliness of the force account reports, neither delay nor mere silence is a sufficient basis from which to infer an intent to waive a contract right (Ferraro v Janis, 62 AD3d 1059 [2009]; D.J. Rossetti, Inc. v Joseph Francese, Inc., 273 AD2d 781 [2000]). At most, such conduct evinces "passive acquiescence" which is insufficient to establish an intentional or affirmative relinquishment of a known right (Ferraro v Janis, 62 AD3d at 1060). As a result, claimant failed to raise a material question of fact on the waiver issue.

Lastly, claimant argues that its noncompliance with the reporting requirements of the Contract should be excused because, given the nature of the disputed work, it was impossible to prepare the force account reports in a timely manner. Mr. Frangos avers in this regard that "[t]he extra work here was the additional labor, materials and equipment used in the blast cleaning. To separate the extra work from the expected, Liberty needed to look back after the work was complete to measure the additional labor, materials and equipment actually expended" (Frangos affidavit , 19). By way of example, Mr. Frangos notes that because the abrasive medium was held in a 20 ton pot it was impossible to determine on a daily basis how much medium was used. While differentiating the exact cost of the alleged extra work from the Contract work on a daily basis may have been difficult, claimant wholly fails to explain why records of materials, equipment and labor could not have been provided contemporaneously with the work as required by 109-05 [C] [1]. Nor does the claimant explain why the Force Account Summary of Labor was not provided within 5 calendar days after the end of each pay period as required by 109-05 [C] [2] or why the Force Account Summation was not provided within ten calendar days of the completion of the work as required by 109-05 [C] [3] of the Contract's Standard Specifications. In this regard, the utility of Mr. Frangos' argument is undercut by the fact that the damages sought in the claim are based on the application of a uniform 67% increase in per nozzle-hour costs required to perform the work. The Court can discern no reason and the claimant has provided no colorable explanation why these apparently fixed percentage costs, which were incurred on a "per nozzle hour" basis, could not be timely reported.

The Contract at issue in this case expressly provided that "[t]he notification and record-keeping provisions in this Contract shall be strictly complied with for disputes of any nature and are a condition precedent to any recovery" (defendant's Exhibit D, 105-14). Daily summaries of the force account work were required to be prepared contemporaneously with the work. The documents were to be signed, dated and provided to the Engineer-in-Charge "not later than closing time on the day following that for which the work is reported" (defendant's Exhibit D, 109-05 [C] [1]). This was not done. Not only were the required force account reports provided long after the purported extra work was completed, they were initially submitted unsigned in violation of the Contract's requirement that they be signed and dated (cf. Marcor Remediation, Inc. v County of Broome, 46 AD3d 1066 [2007] [statement of claim was not verified as required in the contract resulting in waiver of a breach of contract claim for extra work]; Tug Hill Constr. v County of Broome, 270 AD2d 755 [2000] [notice of claim was not properly verified nor supported by documentary evidence as required by the contract resulting in waiver of claim for extra work]). Both the clear and unambiguous contract language requiring strict compliance as well as the public policy interest in mitigating damages and conserving the public fisc support the conclusion that claimant's failure to strictly comply with the force account reporting requirements constitutes a failure to comply with a condition precedent to suit. Having raised no material issue of fact in opposition to the defendant's prima facie showing of its entitlement to summary judgment on this issue (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), claimant's first cause of action for breach of contract is dismissed.

Recovery for unjust enrichment lies as a quasi-contract claim (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009]). "It is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned" (Id. at 142). Where there is a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment or quantum meruit is ordinarily precluded for events arising out of the same subject matter (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382 [1987]; see also Cox v NAP Constr. Co., Inc., 10 NY3d 592, 607 [2008]; Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). The law is settled that "[a] contractor cannot bring a quantum meruit claim for extra payments beyond the original contract price where there exists a contract governing how payment for extra work will be determined" (Aviv Constr. v Antiquarium, Ltd., 259 AD2d 445, 446 [1999]; see also Charles T. Driscoll Masonry Restoration Co., Inc. v County of Ulster, 40 AD3d 1289, 1291 [2007] ["the contract's specific requirement for the use of written change orders precludes the award of damages beyond the contract price and any written changes thereto"]). Here, there is no dispute that the contract between the parties specifically applies to the very subject matter upon which the causes of action for quantum meruit and unjust enrichment are based, i.e., abrasive blasting and painting of the sky way. Nor is it disputed that the Contract provides the procedure governing how payment for extra work will be determined. Thus, defendant met its burden of establishing its entitlement to summary judgment dismissing claimant's causes of action for unjust enrichment (fourth cause of action) and quantum meruit (sixth cause of action).

In opposition to the motion, claimant asserts that summary judgment is premature because "Liberty is entitled to plead in the alternative. If the mill scale work is found to be outside the scope and provisions of the Contract, then Liberty should be allowed to move forward on its quasi-contract and equitable claims" (Memorandum Of Law In Opposition To Defendant's Motion For Partial Summary Judgment, p. 13). As set forth above, however, the Contract between the parties governs both the work to be performed and the procedure applicable to claims for extra work. Claimant may not circumvent this procedure by the mere expedient of recasting its claim as one for unjust enrichment. Claimant's second, fourth and sixth causes of action in the claim are therefore dismissed.

As to claimant's third cause of action alleging fraud, the Court of Appeals made clear in Clark-Fitzpatrick, Inc. v Long. Is. R.R. Co. (supra) that "a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated" (Id. at 389). Accordingly, it has often been held "that a cause of action for fraud does not arise where

. . . the fraud alleged relates to a breach of contract . . . Thus, absent a legal duty . . . independent of that encompassed by the contract, . . . causes of action grounded on fraud are not cognizable" (Egan v New York Care Plus Ins. Co., 277 AD2d 652, 653 [2000]; see also Moustakis v Christie's, Inc., 68 AD3d 637 [2009]; Williams Oil Co. v Randy Luce E-Z Mart One, 302 AD2d 736 [2003]). Claimant cites in opposition to defendant's motion that line of cases holding that "misrepresentation of a material fact, which is collateral to the contract and serves as an inducement for the contract, is sufficient to sustain a separate cause of action alleging fraud" (WIT Holding Corp. v Klein, 282 AD2d 527 [2001], citing Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954 [1986]; First Bank of Ams. v Motor Car Funding, 257 AD2d 287 [1999]). Here, however, the misrepresentation alleged in the claim as the basis for the fraud cause of action is the very same misrepresentation which forms the basis for the breach of contract cause of action, i.e., defendant's failure to disclose the presence of adherent mill scale and compensate claimant for the extra work required to remove it. Moreover, claimant does not allege in the claim that as the result of the alleged misrepresentation it was induced to enter into the Contract. Rather, claimant alleges that as a result of the misrepresentation it was induced to submit a bid at a lower price (see defendant's Exhibit A, claim, 29). Thus, the allegations of fraud were neither collateral to the contract nor an inducement to enter into the contract. As the fraud alleged does not arise from a legal duty independent of the contract itself, claimant's third cause of action must be dismissed.

To the extent claimant's counsel avers that summary judgment is premature because discovery is not complete, the Court disagrees. "Although '[a] motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party' (Pank v Village of Canajoharie, 275 AD2d 508, 509 [2000]; see CPLR 3212 [f]; Rochester Linoleum & Carpet Ctr., Inc. v Cassin, 61 AD3d 1201, 1202 [2009]), the party opposing the motion must make an evidentiary showing to support that conclusion" (2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1395-1396 [2009], [citing Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007]; Odorizzi v Otsego N. Catskills Bd. of Coop. Educ. Servs., 307 AD2d 490, 492 [2003]; Scofield v Trustees of Union Coll. in Town of Schenectady, 267 AD2d 651, 652 [1999]). Claimant has already deposed both Mr. Iuranich, the Engineer-in-Charge of the project, and Mr. Kowalski, the Regional Construction Engineer. Claimant's counsel's assertion that it served notices for the depositions of several additional representatives is insufficient to warrant denial of the motion. Mere speculation that additional discovery may unearth facts necessary to defeat a motion for summary judgment is insufficient to require denial of the motion as premature.

Based on the foregoing, defendant's motion for summary judgment is granted and the first, second, third, fourth and sixth causes of action in the claim are dismissed.

February 11, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated July 21, 2009;
  2. Affidavit of Freddy Iuranich sworn to July 16, 2009 with exhibits;
  3. Affidavit of Paul Dudley sworn to July 15, 2009 with exhibits;
  4. Affidavit of Paul E. Degen sworn to July 21, 2009 with exhibits;
  5. Affirmation of Eidin Beirne dated July 22, 2009 with exhibits;
  6. Memorandum of Law of Eidin Beirne dated July 22, 2009;
  7. Affidavit of Emanouel Frangos sworn to September 29, 2009 with exhibits;
  8. Affidavit of Brian D. Gwitt sworn to September 30, 2009;
  9. Affidavit of John Todd sworn to September 30, 2009 with exhibit;
  10. Memorandum of Law of William F. Savino, Brian D. Gwitt and Amber E. Storr dated September 30, 2009;
  11. Reply memorandum of law of Eidin Beirne dated October 5, 2009.


1. The standard for Commercial blast cleaning which was set forth in the Contract documents, SSPC-SP6, states the following:

"A Commercial Blast Cleaned surface, when viewed without magnification, shall be free of all visible oil, grease, dirt, dust, mill scale, rust, paint, oxides, corrosion products, and other foreign matter, except for staining. Staining shall be limited to no more than 33 percent of each square-inch of surface area and may consist of light shadows, slight streaks, or minor discoloration caused by stains of rust, stains of mill scale, or stains of previously applied paint. Before blast cleaning, visible deposits of oil or grease shall be removed by any of the methods specified in SSPC-SP1 or other agreed upon methods. For complete instructions, refer to Joint Surface Preparation Standard SSPC-SP6/NACE No. 3" (claimant's Exhibit B, p. 1-2)

2. The Contract's Standard Specifications required the contractor to retain its records and provide access to "[a]ll documents related to the preparation of the Contractor's bid including the final calculations on which the bid was based" (defendant's Exhibit D, 105-14[D] [21]). Inasmuch as claimant has disclosed in response to a discovery demand that these records no longer exist (defendant's Exhibit P), it appears verification of claimant 's allegation of the nozzle-hour production rate utilized as the basis for its bid cannot be verified. Defendant's motion, however, requests no affirmative relief in this regard.

3. While the cover letter accompanying the force account reports is dated January 24, 2005 (erroneously typed as January 24, 2004 [see affidavit of Emanouel Frangos, par. 32; defendant's Exhibit N, p. 119]) , it was sent to Frank Pezze, P.E. of the DOT and not to Freddy Iuranich, the Engineer-in-Charge, as required by the Contract (see defendant's Exhibit D, Standard Specifications, 109-05 [C] [1]). Receipt of the force account reports by the Engineer-in-Charge was therefore delayed.

4. Paul E. Degen, a Claims Engineer employed by the DOT, avers that the only difference between the force account reports submitted in 2005 and those received in 2007 is that the force account reports provided in 2005 have no signatures. The reports provided in 2007 are all dated July 7, 2004 for the period April 15, 2004 through July 6, 2004 and the force account reports for each date thereafter contain a signature corresponding to the date of the alleged extra work (see also defendant's Exhibits G and L).