In a claim for breach of contract defendant's motion for summary judgment was granted to the extent claimant sought payment beyond the contract price for work which was required to be performed by the plain terms of the contract. In addition, claimant failed to comply with notice and record-keeping provisions of contract in certain respects.
|Claimant(s):||PHOENIX SIGNAL AND ELECTRIC CORP.|
|Claimant short name:||PHOENIX SIGNAL|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Darrell W. Harp, Esquire|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Frederick H. McGown, III, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 5, 2010|
|Appellate results:||Affirmed, App Div 3d, 12/22/11|
|See also (multicaptioned case)|
Defendant seeks summary judgment dismissing this breach of contract claim pursuant to CPLR 3212. Claimant cross-moves for partial summary judgment on the issue of liability.
The defendant, New York State Thruway Authority, entered into a contract (the "Contract") with claimant, Phoenix Signal and Electric Corp., for the installation of variable message signs and closed circuit television cameras at various locations along the New York State Thruway in Ulster, Rockland, and Westchester Counties. Work under the Contract was required to be performed in accordance with the New York State Department of Transportation Standard Specifications (see defendant's Exhibit D, Contract, Article 1).
Claimant seeks compensation for work which it alleges was either not required by the Contract or unforeseen at the time the Contract was entered into. The first cause of action asserted in the claim seeks $434,280.26 for additional work performed as the result of the defendant's directive prohibiting the use of stay-in-place corrugated metal pipe, which claimant contends was not required by the Contract specifications and contrary to standard industry practices (the CMP Claim). The claim alleges the following in this regard:
"15. In connection with standard practice in meeting such Contract requirements and what Claimant anticipated in forming its bid for the Contract, Claimant chose to use stay in place 42 inch diameter corrugated metal pipes with controlled backfill alongside including concrete that would flow down alongside the metal pipes, with the upper preformed portion of the foundation being in place for the monolithic pour as called for by the Contract.
16. The Contractor had the right to select and use the means and methods of construction and the materials to meet the requirements of the Contract.
17. After one such stay in place 42 inch diameter corrugated metal pipe was in place, without objection by the field personnel including the Engineer in Charge, a higher level Thruway Authority person required that the stay in place 42 inch diameter corrugated metal pipe be removed and an entirely different method of forming the foundation be used.
18. When the Thruway Authority interfered with such contractor's right and/or with the performance of the Contract work, it breached the Contract" (defendant's Exhibit A, Claim, ¶¶ 15-18).
The second cause of action seeks compensation for additional work performed on the construction of a median barrier at location V-4 to accommodate a drainage structure not reflected on the plans (the Median Barrier Claim). The Claim alleges the following:
"30. There was a substantial design error in the Contract Documents relative to a drainage structure, a catch basin, in the median at location V-4 that was neither shown on the plans nor anticipated to be there.
31. In order for the Claimant to accommodate this unforeseen drainage structure and still build the median barrier and not create a traffic hazard it was required that all four (4) legs of the median barrier be hand formed by crews building wood forms in place rather than using pre-cast barriers" (defendant's Exhibit A, claim, ¶¶ 30 and 31).
The third cause of action seeks compensation for work performed in connection with the foundation footings at location V-4, which allegedly required the unforeseen removal of rock and additional concrete backfill (the Blasted Rock Claim). Claimant seeks a total of $85,745.26 on both its second and third causes of action.
With regard to the merits of the CMP claim, defendant contends that the contract specifications governing the construction of the concrete foundations for the overhead sign structures required the removal of any casing prior to placement of concrete in the drilled foundation holes. As a result, defendant contends that the claimant's performance of the work in accordance with this specification forms no basis for a breach of contract claim. In support of this contention, defendant submits a copy of the contract's Standard Specifications and an affidavit from Dianne Denniston. Under the subheading entitled "Drilled Shafts for Overhead Sign Structures", the specifications state the following:
"Holes for drilled shafts shall be pre-augered. Precaution shall be taken to protect the holes from collapse. Holes shall contain no free water, nor any loose material at the time of concrete placement. The holes shall be filled with Class A concrete placed in direct contact with the soil. Casing, if used, shall be removed prior to concrete placement. Precast shafts shall not be permitted" (defendant's Exhibit C, Proposal, amending § 644-3.05 [A] of the Standard Specifications, p. 119 [emphasis added]).(1)
Ms. Denniston is a licensed professional engineer employed by the defendant as a Civil Engineer II in the Bureau of Canal Design. She first became involved with this project when she was contacted by Herb Litts, an Assistant Division Director of Engineering Services, regarding an obstruction encountered during drilling at the VMS # 4 footing. During the course of this conversation, she learned that the claimant "intended to leave the casing [for the overhead sign structures] in place after the concrete was poured and fill in the annular space around the outside of the casing with flowable fill" (defendant's Exhibit O, ¶ 4). She advised Mr. Litts that such a procedure was prohibited by § 644 of the Standard Specifications.
Ms. Denniston explains in her affidavit that "leaving the casing in place, even when the annular space is filled, does not allow the fluid pressure from the concrete to press out against the sides of the drill hole and fully develop the skin friction, which is necessary to resist the applied compressive and uplift forces" (defendant's Exhibit O, ¶ 5). Following the initial rejection of the claimant's stay-in-place casing methodology, Ms. Denniston received a proposal from the claimant, prepared by John S. Deerkoski, P.E., detailing an alternative procedure utilizing a drilled shaft foundation with a corrugated casing which would remain in place permanently (defendant's Exhibits O, ¶ 6 and O-4). Mr. Deerkoski acknowledged in his report that while "not literally meeting the requirements of the standard, it meets or exceeds the intent of the standard specifications" (defendant's Exhibit O-4). Ms. Denniston rejected the proposal as it did not adequately address certain safety issues, indicating that "[a]ny re-submittal must demonstrate that 20.5 tons of skin friction resistance for uplift is achieved" (defendant's Exhibit O-5). Thereafter Ms. Denniston approved the claimant's proposal for using "a two stage pour to construct the drilled shaft foundation without a full-length permanent casing being left in place below grade" (defendant's Exhibit O, ¶ 8). It is this work for which the claimant seeks additional compensation.
In the Court's view, defendant established its prima facie entitlement to summary judgment dismissing the claimant's first cause of action (Zuckerman v City of New York, 49 NY2d 557 ). Both the plain language of the contract's Standard Specifications as well as the affidavit of Dianne Denniston establish that the claimant's proposed use of a stay-in-place corrugated metal pipe violated the contract's specifications. Section 644-3.05 (A) of the Standard Specifications clearly required that the concrete placed in the drilled foundation holes be in "direct contact with the soil" and that "[c]asing, if used, shall be removed prior to concrete placement" (defendant's Exhibit C, p. 119). Claimant's proposed procedure would have violated this specification, as recognized by claimant's consulting engineer, Mr. Deerkoski. As a result, claimant's performance of the work in compliance with the contract specifications forms no basis for either a breach of contract or extra work claim.(2)
In opposition to this branch of the defendant's motion claimant contends that the relevant contract plan, which takes precedence over the contract Standard Specifications (Exhibit E, Standard Specifications, § 102-04, p. 1-12), limits the prohibition against stay-in-place casing to the drilling of rock. Specifically, claimant's counsel argues that "Note 6 on Sheet 20 of the Plans limited such removal to only rock pouring situations" (affirmation of Darrell W. Harp, ¶ 16). The portion of the Contract plans entitled "VMS Foundation Details" includes Note 6 which states the following:
"6. Any drilling of rock for shaft foundations shall be performed from the existing earth surface through the auger hole formed during the drilling operation. Casing, if used, shall be removed prior to placing shaft concrete" (claimant's Exhibit 1, plan 20 of 64, drawing no. SD-3).
This note is consistent with the requirement set forth in the Standard Specifications for drilled shaft foundations that "[c]asing, if used, shall be removed prior to concrete placement" (defendant's Exhibit C, p. 119). The order-of-precedence clause, relied upon by the claimant for a contrary conclusion, states:
"The following components of the contract documents complement one another in this declining order of precedence; plans, proposal, specifications, and then base line data. The intent of the contract documents is to include all items/aspects of the work that are necessary for the proper initiation, execution, and completion of the work . . ." (defendant's Exhibit E, § 102-04 [B], p. 1-12).
The order-of-precedence clause makes clear that the contract documents are intended to complement each other in order to include all aspects of the work. Claimant's interpretation of the contract would require the conclusion that the plan notes, which do not purport to be a complete rendition of the contract's specifications, supersede a provision of the Standard Specifications (§ 644-3.05 [A]) specifically applicable, without limitation, to the "layout and construction of Drilled Shaft foundations for Overhead Sign Structures." Such a conclusion is not only at odds with the plain language of the order-of-precedence clause, but contrary to well-settled principles of contract law requiring that courts give full meaning and effect to the material provisions of a contract while, to the extent possible, giving effect to its general purpose (Beal Sav. Bank v Sommer, 8 NY3d 318, 324-325 ; Queens Best, LLC v Brazal S. Holdings, LLC, 35 AD3d 695 ; First Fed. Sav. & Loan Assn. of Rochester v Minkoff, 176 AD2d 1049 ). "It is a cardinal rule of construction that a court should not adopt an interpretation which will operate to leave a provision of a contract . . . without force and effect" (Corhill Corp. v S.D. Plants, Inc., 9 NY2d 595, 599  [internal quotation marks and citations omitted]). Claimant's proposed application of the order-of-precedence clause would render meaningless the Standard Specifications without giving effect to the general purpose of the contract. Accordingly, claimant's performance of the work in compliance with the Standard Specifications of the contract provides no basis for a breach of contract or extra work claim. Claimant's first cause of action is therefore meritless as a matter of law.
Defendant also contends that the claimant's failure to comply with the notice and reporting requirements of the contract applicable to claims for extra work requires dismissal of the claim. In support of this branch of its motion, defendant submitted the affidavit of Timothy X. Shaw, the Engineer-in-Charge of the project, in which he avers that although the claimant provided timely notice and daily summaries for the work performed in connection with the Blasted Rock Claim, it failed to provide timely notice and documentation of the force account work performed in connection with both the CMP and the Median Barrier claims (the first and second causes of action). Mr. Shaw states the following with respect to the CMP Claim:
"At no time during the pouring of the foundations did [claimant] provide the [defendant] with written notice that it considered the work as disputed work or extra work. Furthermore, during the course of the work, no daily summaries of force account work were submitted to me or any other [Thruway Authority] representative to confirm labor, materials and equipment used. . . The paper work concerning such foundation was not delivered to the [Thruway Authority] until almost one year later. On August 18, 2006, Allen Goldberg stopped by the field office and left off 'a claim' for the VMS foundation. This package consisted of a Force Account Summation for the amount of $434,280.87 and various documents in support of this claimed amount (defendant's Exhibit Q, affidavit of Timothy X. Shaw, ¶¶ 7, 8).
With respect to the Median Barrier Claim, Mr. Shaw states that "[t]he paperwork, including daily summaries, were not delivered to the [Thruway Authority] until almost one year later, when on August 29, 2006 Alan [sic] Goldberg stopped by and dropped off another claim related to the median barrier at V-4" (defendant's Exhibit Q, affidavit of Timothy X. Shaw, ¶ 11).
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 § 109-05 (C), Force Account Reports" (defendant's Exhibit E, Standard Specifications, § 105-14 [C], p. 1-73). Notice of a claim for extra work must be provided to the Engineer within ten work days of receipt of the order or direction to perform the work (defendant's Exhibit E, §105-14 [C]) and copies "shall also be provided to the Director, Office of Contracts and Construction Management and to the Office of the Director, Department of Engineering Services" (defendant's Exhibit C, Proposal, Addendum No. TA (03), p. 26). Pursuant to § 109-05 (C) (1), payment for disputed work is based upon daily summaries provided by the contractor to the Engineer-in-Charge "not later than closing time on the day following that for which the work is reported" (defendant's Exhibit E, Standard Specifications, p. 1-116). The daily summaries are required to contain a detailed list of materials, equipment and personnel utilized in performing the work as well as a statement or description of the work accomplished for the day (id.). 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 E, § 109-05 [C]  [e]).
In addition to the daily summaries, the Contractor is required to provide a Force Account Summary of Labor to the Engineer-in-Charge"[w]ithin 5 calendar days after the end of each pay period" (defendant's Exhibit E, Standard Specifications, § 109-05 [C] , p. 1-117). 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 within ten calendar days of completion of the force account work (defendant's Exhibit E, Standard Specifications, § 109-05 [C] , p. 1-117). The Contract contains the following provisions with respect to the notice and record-keeping requirements of the Contract:
"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 E, § 105-14, p. 1-70).
The disputed work provisions contained in § 105-14 (C) reiterate that "[f]ailure by the Contractor to promptly notify, in writing, the Engineer, the [Thruway Division Director](3) , and the Commissioner of its contentions relative to any dispute or to maintain and furnish force account reports for disputed work shall constitute a waiver of the disputed work" (defendant's Exhibit E, p. 1-73).
The Standard Specifications make clear that compliance with the notification and record-keeping requirements of the Contract are a condition precedent to a claim for extra work (see A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20 ). "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 ; see also Kingsley Arms, Inc. v Sano Rubin Constr. Co., Inc., 16 AD3d 813 ; Promo-Pro Ltd. v Lehrer McGovern Bovis, 306 AD2d 221 ; Sicoli & Massaro v Niagara Falls Hous. Auth., 281 AD2d 966 ; F. Garofalo Elec. Co. v New York Univ., 270 AD2d 76 ). " '[C]ompliance with the notice of claim provisions of a . . . contract constitutes a condition precedent to the commencement of an action for breach of contract which may only be avoided if the municipality acted in a manner that precluded the other party from complying' " (Marcor Remediation, Inc. v County of Broome, 46 AD3d 1066, 1068 , quoting Tug Hill Constr. v County of Broome, 270 AD2d 755, 756 ). The notice and record-keeping provisions of public works contracts 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., 92 NY2d at 34; see also Huff Enters. v Triborough Bridge & Tunnel Auth., 191 AD2d 314, 316 , lv denied 82 NY2d 655 ).
Defendant established through the affidavit of Timothy X. Shaw that claimant failed to comply with the notice and reporting provisions of the Contract for the work performed in connection with both the CMP Claim and the Median Barrier Claim. According to Mr. Shaw, summaries of force account work performed relative to both claims were not submitted until approximately one year following completion of the work. Moreover, most of the force account reports submitted with respect to these claims were undated by the claimant's representative and/or unsigned by the Engineer-in-Charge (see defendant's Exhibit M). The Court finds here, as it did in Liberty Maintenance v State of New York (UID No. 2010-015-108, Claim No. 115228 [Ct Cl, February 11, 2010])(4) , that "[b]oth 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." Defendant having established its entitlement to summary judgment dismissing both the CMP Claim and the Median Barrier Claim (claimant's first and second causes of action), the burden shifted to the claimant to raise a triable question of fact (see Zuckerman v City of New York, 49 NY2d 557 ). This it failed to do.
In opposition to the defendant's motion, claimant contends that the instant claims are controlled by § 109-16 (A) of the Standard Specifications. This section, entitled "Changed Conditions and Delay Provisions", sets forth four situations in which a claim for additional compensation "caused by delay or interference affecting the performance or the scheduling of contract work" may be made:
"1. different site conditions;
2. suspension of work . . .
3. significant changes in the character of the work; and
4. situations not referenced in subsection B and which are not within the contemplation of the parties at the time of entering into the contract."
Claimant's counsel argues that both the CMP and Median Barrier claims fall within the fourth category set forth above which "does not have any such provisions requiring notice or recordkeeping" (affirmation of Darrell W. Harp, ¶ 12). Claimant's counsel apparently overlooked the very next paragraph:
"In addition, these aforementioned provisions may also form the basis for extra work compensation pursuant to § 105-14 and § 109-05 . . . In all such instances, for any claim asserted under this section, the Contractor shall keep detailed written records of the costs and agrees to make them available to the Department at any time for purposes of audit and review.
Any dispute relating to such claims shall promptly be submitted to the Engineer in writing, pursuant to the notice provisions of the contract. Failure by the Contractor to notify the Engineer in writing pursuant to the provisions of this contract, or to maintain and furnish cost records of such claims, shall constitute a waiver of the claim" (defendant's Exhibit E, Standard Specifications, § 109-16, p. 1-123)
The explicit reference to both the record-keeping provisions of § 109-05 and the disputed work provisions of § 105-14, including those relating to notice and waiver of a claim for noncompliance, leaves no doubt that compliance with the notice and reporting requirements of §105-14 and §109-05 (C) was required. Importantly, the Standard Specifications state explicitly that work described in § 109-16 must comply with the notice provisions contained in § 105-14 (C) and the reporting requirements of § 109-05 (C), stating:
"This subsection shall cover all such applicable work under § 109-16. During the progress of such disputed work, the Contractor and Engineer shall 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 E, §105-14).
Accordingly, claims for extra work under § 109-16 (A) (4) are clearly controlled by the notice and record-keeping provisions of §105-14 and § 109-05. Notice of the claim and detailed summaries of the work were therefore required to be provided as set forth therein.
Claimant also relies on § 104-03 for the proposition that an order-on-contract was required to trigger the notice and record-keeping provisions of § 105-14 and § 109-05. This contention is, once again, belied by the plain language of this section:
"Contractor may proceed with the work in advance of the approved order-on-contract if the Contractor has received an approved Authorization of Additional Work from the Construction Division. Otherwise, payment for any unforeseen work shall be made only if the contractor complies or has complied with all of the provisions of § 105-14, § 109-05 and § 109-16 as applicable" (defendant's Exhibit E, Standard Specifications, § 104-03, p. 1-54 [emphasis added]).
Absent an approved authorization for additional work, therefore, compliance with the notice and reporting requirements of §§ 105-14, 109-05 and 109-16 was required.
Claimant argues alternatively that it complied with the notice and reporting requirements of § 105-14 and § 109-05. Claimant first argues that it complied with any applicable notice provisions for all three claims. With respect to the Blasted Rock Claim (claimant's third cause of action) there is no dispute that notice of the claim and daily summaries of the work performed on July 13, 2005 and July 14, 2005 were timely provided on July 15, 2005 (defendant's Exhibit N). With respect to the CMP Claim (first cause of action), claimant points to an undated letter from Timothy X. Shaw acknowledging claimant's August 1, 2005 inquiry regarding what Mr. Shaw describes as a delay claim related to the VMS footings (see claimant's Exhibit 5). A delay claim is not a claim for extra work and, for that reason, the letter from Mr. Shaw fails to support claimant's contention that defendant was provided notice of the CMP Claim. In this regard, the Court notes the claimant failed to provide a copy of Allen Goldberg's correspondence of August 1, 2005. It was this correspondence which Mr. Shaw was responding to in his letter submitted as claimant's Exhibit 5. If, as claimant alleges, Mr. Goldberg's correspondence provided the defendant notice of a potential claim for extra work in connection with the CMP claim, the Goldberg letter, and not Mr. Shaw's response, should have been submitted in support of its contention. Moreover, there is no indication that copies of any such notice were provided to "the Director, Office of Contracts and Construction Management and to the Office of the Director, Department of Engineering Services" as required by the Contract specifications (see defendant's Exhibit C, Proposal, Addendum No. TA , p. 26).
With respect to the Median Barrier Claim (second cause of action), claimant contends that notice was acknowledged by defendant when the design errors were discovered. However, as pointed out by Martin F. White, Civil Engineer III in the Office of Construction Management, "[a]cknowledgment of a design error does not mean the [Thruway Authority] has been put on notice of a dispute. All design errors do not automatically result in the contractor seeking additional compensation. Sometimes, as in this case, there are no additional costs associated with the necessary change. If this was properly disputed with contemporaneous cost records, we may have found that the shortening of the barrier cost less . . ." (Affidavit of Martin F. White sworn to May 18, 2010, ¶ 17). Accordingly, claimant failed to refute defendant's prima facie showing that timely notice of a claim for extra work was not provided in connection with both the CMP and Median Barrier Claims.
In support of its assertion that the reporting requirements of § 105-14 and § 109-05 were satisfied, claimant submits the affidavit of Allen Goldberg who states that he was "in charge of the Project on behalf of Claimant, Phoenix Signal and Electric Corp." (claimant's Exhibit 12, ¶ 2). In his affidavit Mr. Goldberg states that he prepared daily summaries of extra work performed by Phoenix on MURK 11 forms and that Mr. Betanzos and the other inspectors refused to sign them "based on Defendant's position that there was no 'disputed work or extra work' involved . . ." (claimant's Exhibit 12, ¶ 11). Mr. Goldberg also avers that MURK 11 forms were submitted "throughout the performance of work relative to Claims 1 and 2 to the Project Office even though they were not signed by the inspector in charge. . . I also submitted a copy of the M.U.R.K. 111 [sic] Forms to Claimant's Office" (claimant's Exhibit 12, ¶¶ 12 & 13).
First, Mr. Goldberg's assertion that Mr. Betanzos and the other inspectors refused to sign the daily summaries of extra work overlooks the fact that the forms were required to be signed by Mr. Shaw, the Engineer-in-Charge (see defendant's Exhibit E, Standard Specifications § 109-05 [C]  [e]). Second, Mr. Goldberg's assertion that he submitted daily summaries of work relative to claims 1 and 2 to the "Project Office" also fails to demonstrate compliance with the requirement that notice be provided to the Engineer-in-Charge. "Project Office" is not defined in the Standard Specifications and Mr. Goldberg offered no explanation of the meaning of the term in his affidavit. Nor does his affidavit testimony establish that daily summaries were provided "not later than closing time on the day following that for which the work is reported" as required by § 109-05 (C) (1). Lastly, and perhaps most significantly, Mr. Goldberg's assertion that he submitted daily summaries to the "Project Office" throughout the performance of the work is belied by his examination before trial testimony in which he stated that on those occasions when an inspector refused to sign a MURK 11 form "I took the original, gave it back into the office and the office tried to handle it from there" (claimant's Exhibit 3, examination before trial testimony of Allen Goldberg, p. 25). Mr. Goldberg's examination before trial testimony was clear and unambiguous. When there was a refusal by the inspector to sign the daily summaries, he submitted the forms to his employer's office for future handling. To the extent Mr. Goldberg's affidavit contradicts his examination before trial testimony it lacks credibility and may be disregarded (Cole v Tischler, 68 AD3d 1595 1596 ; Valenti v Exxon Mobile Corp. 50 AD3d 1382, 1384 ).
Michael Betanzos, the Chief Inspector on the project, explained in an affidavit submitted in support of the defendant's motion that at the beginning of the job, Mr. Goldberg requested that he sign daily summaries (MURK 11 forms) for his employees' attendance and work on the job. Mr. Betanzos "refused that request and informed him that it was his responsibility to maintain records concerning the routine work performed by his employees on a daily basis and that MURK 11 forms were only to be used for force account work . . . At no time did I refuse to sign any daily records that were related to disputed work or extra work" (defendant's Exhibit R, affidavit of Michael Betanzos, ¶¶ 2, 3). Mr. Goldberg disputes this assertion.
While claimant may have raised an issue of fact regarding whether or not Mr. Betanzos refused to sign daily summaries related to force account work, this fact is immaterial. The daily summaries were required to be signed by and submitted to Mr. Shaw, as the Engineer-in-Charge, not Mr. Betanzos, an inspector (see defendant's Exhibit E, Standard Specifications, § 109-05 [C] , p. 1-116). The defendant established that the daily force account summaries relating to both the CMP Claim and the Median Barrier Claim were neither signed by the Engineer-in-Charge nor delivered to the Engineer-in-Charge until almost one year after the completion of the project. Moreover, claimant appears to concede that no force account summary of labor was delivered to the Engineer-in-Charge within five calendar days after the end of each pay period as required by § 109-05 (C) (2), and that no force account summation was delivered within 10 calendar days of the completion of the specific force account work as required by § 109-05 (C) (3).
Claimant next contends that § 109-05 (C) (4) of the Standard Specifications operates to extend its time to submit the required reports. Claimant failed to note that this section was amended to apply only to the submission of the final force account summation reports specified in subsection C, paragraph 3:
4. In the event the contractor fails to deliver the required force account documentation to the EIC within the time period specified in § 109-05, subsection C, paragraph 3, 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 data by an equal period of time (defendant's Exhibit E, Standard Specifications, § 109-05 [C] , p. 1-117; defendant's Exhibit C, Proposal, p. 47 [emphasis added]).
This subsection, as amended, clearly does not operate to relieve a contractor of its obligation to submit timely force account reports and records as required by § 109-05 (C) (1) and (2).
Defendant points out that in addition to the claimant's failure to timely provide the Thruway Authority with force account reports of work, labor and materials used in the performance of its work, many of the records and documents necessary to verify the work have been lost or destroyed (see defendant's Exhibit E, Standard Specifications, § 105-14, p. 1-74; defendant's Exhibit C, p. 74). Claimant was required to maintain these records for six years, which it failed to do (defendant's Exhibit C, p. 74). Claimant's belated notice and untimely submission of the force account reports, together with its loss of foundational records to support the claim, constitute a waiver of its claims for extra work relating to both the CMP and Median Barrier Claims.(5) Accordingly, defendant's motion for summary judgement dismissing the first and second causes of action in the claim is granted.
The Court reaches a different conclusion with respect to the Blasted Rock Claim, the third cause of action asserted in the claim. It has been held that " 'in cases where the State is apprised of the contractor's claim that extra work beyond the contract was being performed, the State has been precluded from insisting upon strict compliance with the notice provisions' " (Whitmyer Brothers, Inc. v State of New York, 63 AD2d 103, 107 , quoting Amadeus, Inc. v State of New York, 36 AD2d 873, 874 , lv denied 29 NY2d 486 ). In such cases, there must be extensive timely written correspondence or other contact between the contractor and the agency (Abax, Inc. v Lehrer McGovern Bovis, Inc., 8 AD3d 92 ; G. De Vincentis & Son Constr. v City of Oneonta, 304 AD2d 1006 ; Huff Enters. v Triborough Bridge & Tunnel Auth., 191 AD2d 314 , lv denied 82 NY2d 655 ). Here, it is undisputed that the defendant had timely notice of the claim and that daily summaries of the work were timely provided. In the Court's view, the submission of these daily summaries sufficiently apprised the defendant of the nature of the claim so as to satisfy the underlying public policy of allowing the defendant to mitigate damages and avoid the waste of public funds. Given claimant's timely submission of daily reports, and inasmuch as defendant does not contend that it was prejudiced by the claimant's failure to submit the additional reports required by § 109-05 (C) (2) and (3), the failure to provide reports compliant in every technical respect with the contract should, under these circumstances, be excused (id.).
Lastly, to the extent claimant's counsel seeks costs and expenses for frivolous motion practice by the defendant, the request is denied for the obvious reason that defendant largely prevailed on its motion. Counsel is cautioned that such a request, if frivolous, may itself form the basis for sanctions (22 NYCRR §§ 130-1.1,[c] ; 206.20).
Based on the foregoing, defendant's motion for summary judgment is granted to the extent of dismissing the claimant's first and second causes of action and is otherwise denied. Claimant's cross-motion is denied in its entirety.
August 5, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Section 644 of the Standard Specifications was deleted and replaced as indicated in the Proposal (defendant's Exhibit C) at pp. 114-125.
2. The contract defines "extra work" as "[a]n item of work not provided for in the contract as awarded but found essential to the satisfactory completion of the contract within its intended scope" (defendant's Exhibit E, § 101-02, p. 1-5)
3. The Standard Specifications of January 2, 2002 (defendant's Exhibit E) were amended by the New York State Thruway Authority Addendum No. TA (03) to delete the words "Regional Director", wherever it appears in § 105-14 [C] entitled Disputed Work and replace them with "Thruway Division Director" (see defendant's Exhibit C, proposal, p. 27).
4. Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.
5. Claimant's counsel's reliance on § 105-14 (A) (3) is misplaced as that section applies to time-related disputes. In addition, claimant's counsel misquoted this section, injecting language which does not appear in the Contract's Standard Specifications. (see affirmation of Darrell W. Harp dated May 11, 2010, p. 22, par. 114).