Claimant's motion for entry of summary judgment in a sum certain and severance of remaining cause of action was granted.
|Claimant(s):||HANSON AGGREGATES NEW YORK, INC.|
|Claimant short name:||HANSON AGGREGATES NEW YORK, INC.|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Gates & Adams, P.C.
By: Christian M. Nadler, Esq.
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Eidin Beirne, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 19, 2010|
|See also (multicaptioned case)|
Claimant moves for a severance of its fifth cause of action pursuant to CPLR 3212 (e) (1) and the entry of judgment against the defendant in the total sum of $225,515.89 pursuant to CPLR 5012.
Claimant alleges causes of action for breach of contract, account stated, unjust enrichment and quantum meruit with respect to two contracts. By Decision and Order dated September 26, 2008 the Court granted claimant's motion for partial summary judgment on the issue of liability with respect to contract number TAS 06-38/D213584 (hereinafter Contract 38) and severed the first through fourth causes of action relating thereto. The motion with respect to contract number TAS 06-42 / D213631 (hereinafter Contract 42) was denied (see Hanson Aggregates New York, Inc. v New York State Thruway Auth., Ct Cl, September 26, 2008 [Claim No. 115013, Motion No. M-74968], Collins, J. unreported).(1) Claimant subsequently moved to renew its prior motion, proffering new evidence that the work performed in connection with Contract 42 was completed and reasonably conformed to applicable plans and specifications. In addition to seeking the principal amount of $364, 494.58 on Contract 42, claimant sought interest on the principal amounts owed under both Contracts 42 and 38.(2) The Court granted claimant's motion for renewal and, upon reconsideration, granted that branch of claimant's motion which sought summary judgment on Contract 42 in the principal amount of $364,494.58. With respect to the request for interest, the Court found that the claimant failed to establish both the date interest began to accrue as well as the appropriate rate of interest (see Hanson Aggregates New York, Inc. v New York State Thruway Auth., Ct Cl, May 26, 2009 [Claim No. 115013, Motion No. M-76217], Collins, J. unreported).
Claimant now seeks severance of its fifth cause of action for breach of contract relating to Contract 42 and the entry of judgment thereon in the principal amount of $225,515.89. Although the Court previously awarded summary judgment in the principal amount of $364,494.58 with respect to this cause of action, claimant's counsel indicates that the defendant has paid to the claimant the additional amount of $138,978.69, thus leaving a balance due in the amount of $225,515.89.
The motion is granted inasmuch as defense counsel has indicated she has no objection to the entry of judgment in the total sum of $225, 515.89, the fifth cause of action in the claim is severed and the Clerk is directed to enter judgment on the fifth cause of action in the principal amount of $225,515.89, without interest, pending a hearing in accordance with this Court's prior Decision and Order dated May 26, 2009.
April 19, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of Motion dated February 4, 2010;
2. Affirmation in support dated February 4, 2010 with exhibits;
3. Letter from Office of the Attorney General dated March 15, 2010.
1. Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decison.htm
2. Claimant's counsel has indicated that the principal balance owed under Contract 38 has been paid.