New York State Court of Claims

New York State Court of Claims
HANSON AGGREGATES v. THE NEW YORK STATE THRUWAY AUTHORITY, # 2010-015-170, Claim No. 115013, Motion No. M-78209

Synopsis

Summary judgment on force account claim was denied as issues of fact remain unresolved regarding the quality of the work performed.

Case information

UID: 2010-015-170
Claimant(s): HANSON AGGREGATES NEW YORK, INC.
Claimant short name: HANSON AGGREGATES
Footnote (claimant name) :
Defendant(s): THE NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115013
Motion number(s): M-78209
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Gates and Adams, P.C.
By: Christian M. Nadler, Esquire and
Douglas S. Gates, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Eidin Beirne, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 26, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves for summary judgment pursuant to CPLR 3212 on its claim for monies allegedly due for force account work performed in connection with a highway construction contract.

On or about July 27, 2006 the parties entered into contract number TAS 06-42 / D213631 (hereinafter Contract 42) for the reconstruction and paving of 13.5 miles of the New York State Thruway between milepost 220.0 and milepost 233.5. On or about October 31, 2006 the parties entered into contract number TAS 06-38 / D213584 (hereinafter Contract 38) for the reconstruction and paving of 7.4 miles of the New York State Thruway between milepost 233.5 and milepost 240.9.

By Decision and Order dated September 26, 2008, the Court granted claimant's motion for summary judgment on the issue of liability relating to the balance due under Contract 38, severed the first through fourth causes of action relating thereto, and denied the motion to the extent it sought judgment on the balance due under Contract 42 (Hanson Aggregates v New York State Thruway Auth., UID No. 2008-015-070, Claim No. 115013, Motion No. M-74968 [Ct Cl, Sept. 26, 2008] Collins, J.). Claimant thereafter moved for renewal of its motion for summary judgment as to the balance due under Contract 42, based on evidence which indicated the defendant accepted the work performed under the contract subsequent to the date the prior motion was made. Claimant also indicated that the principal amount owed on Contract 38 had been paid and sought interest on the belated payment as well as interest on the balance owed under Contract 42. The Court granted renewal and summary judgment in favor of the claimant on the balance due under Contract 42 in the principal amount of $364,494.58 (claimant's fifth cause of action asserted in the claim). Issues relating to interest payable on the amounts owed under both Contracts 38 and 42 were held in abeyance pending a hearing to determine the applicable rate of interest and the dates from which it accrued. (Hanson Aggregates v New York State Thruway Auth., UID No. 2009-015-172, Claim No. 115013, Motion No. M-76217 [Ct Cl, May 26, 2009] Collins, J.). Claimant thereafter moved to sever its fifth cause of action relating to the balance due under Contract 42 and entry of judgment against the defendant in the amount of $225,515.89. Inasmuch as defendant consented to the entry of judgment in this amount, the motion was granted (Hanson Aggregates v New York State Thruway Auth., UID No. 2010-015-130, Claim No. 115013, Motion No. M-77829 [Ct Cl, April 19, 2010] Collins, J.).

Claimant now moves, once again, for summary judgment on amounts allegedly owed under Contract 42 for force account work it was required to perform relative to the removal and replacement of pavement between mileposts 219.9 and 225.1 of the New York State Thruway (claimant's seventh cause of action). Claimant agreed to remove and replace the subject pavement but notified the defendant the work would be performed on a "force account" basis. A force account of $669,127.08 was established and claimant now seeks to recover this amount.

Claimant's motion for summary judgment relating to Contract 42 was previously denied and, upon renewal, summary judgment was granted only with respect to that portion of the work which had been accepted by the defendant. Thus, the instant motion is claimant's second motion for summary judgment relating to Contract 42. The law is settled that "[m]ultiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause" (La Freniere v Capital Dist. Transp. Auth., 105 AD2d 517 [1984]; Pavlovich v Zimmet, 50 AD3d 1364 [2008]).

In support of the instant motion, claimant submits affidavits of Thomas McCambley, its Construction Manager, and Brian D. Prowell, Ph.D., P.E., its expert, together with Dr. Prowell's inspection reports and various correspondence pertaining to the removal and replacement of the pavement in issue. Such evidence was either submitted, or could have been submitted, on the earlier motion. To the extent claimant references the examination before trial testimony of various employees of the defendant, it failed to support these references with copies of the transcripts. The transcripts which were submitted by claimant, in reply, contained neither the signatures of the witnesses nor a certification by the officer before whom the depositions were taken (see CPLR 3116 [a] [b]; cf. Mazzarelli v 54 Plus Realty Corp., 54 AD3d 1008 [2008] [properly certified and executed signature page of the deposition transcript was submitted in reply and properly considered]). As nothing submitted in support of the instant motion constitutes newly discovered evidence, claimant failed to establish its right to summary judgment on this, its second such motion.

Even were the Court to consider the merits of the motion, questions of fact exist precluding summary judgment. The pavement placed under Contract 42 was rejected by letter dated September 19, 2007 from John B. Riese of Barton & Loguidice, P.C., Thruway Project Engineer. The reason for the rejection is stated in the letter as follows:

"The pavement placed in 2007 is exhibiting flushing of the asphalt binder. The flushing is more severe in some areas than others. This pavement is defective and is not acceptable to the Authority. In addition, the results of the PG high temperature grade test are below the specified 64 for the pavement placed in 2007. The friction test results show friction numbers below the expected number for new pavements.

Based on the above, and pursuant to Section 105-11 on page 29 of the Proposal, C. Removal of Unacceptable and Unauthorized Work, I am rejecting all pavement placed in 2007" (Exhibit B annexed to Gates affirmation dated April 26, 2010).

The pavement placed in connection with Contract 38 was rejected for identical reasons by letter dated September 21, 2007 (Exhibit A annexed to Gates affirmation dated April 26, 2010). Although claimant was initially directed to remove and replace the pavement placed in connection with both contracts at no additional cost to the Thruway Authority, Mr. Riese's directive to remove and replace the pavement work performed in connection with Contract 38 was revised and, by letter dated October 8, 2007, amended to state that "[n]o area needs to be removed this year due to intermediate flushing" (Exhibit C to McCambley affidavit). The work performed on Contract 38 was later accepted and, as set forth above, the principal balance owed on the contract was paid to the claimant.

In support of the instant motion for summary judgment regarding the force account work performed under Contract 42, Mr. McCambley avers that all specifications applicable to the hot mix asphalt were met and that the defendant never established to the contrary during the contractual dispute resolution process. In this regard he notes that the claimant received performance bonuses for plant production quality, pavement density and pavement ride quality totaling $219,265.20. Mr. McCambley states that the pavement removed and replaced on Contract 42 "was similar in appearance to the rest of the pavement that was placed in 2007 and not replaced" (McCambley affidavit, 14). Although Mr. McCambley admittedly observed a "sheen on the pavement that was somewhat different" from what he was used to seeing, he states that he did not find the condition to be "alarming". According to Mr. McCambley, the sheen "was worn away by traffic" (McCambley affidavit, 19). With respect to the pavement placed under both contracts 38 and 42, Mr. McCambley states the following:

"19. . . I have never heard of any problems with the pavement that remained in place based on either safety or function. I have every reason to believe that the same would be true of the removed pavement, had it remained in place. No one, including Mr. Garrabrant in his Dispute Decision, has explained to me why the ten lane miles needed to be treated differently from the rest of the pavements . . .

20. The Authority's own testing failed to show that any specification was not met within the ten lane miles; nor did it provide any other reason for treating it differently from the rest. . ." (McCambley affidavit, 19, 20).

Mr. McCambley states that defendant's unilateral change to the "PG binder" specification by letter dated October 8, 2007 (Exhibit C to McCambley affidavit) constituted extra work exceeding the requirements of the contract and that the defendant "may have considered that its original specification had been the cause of the appearance of the pavement" (McCambley affidavit, 5).

Dr. Prowell, claimant's expert, inspected the pavement which is the subject of the force account prior to its removal and rendered the opinion that it conformed to all contract specifications. He states the following in his report, which is quoted in his affidavit:

"Visual observations indicated a tightening in the wheel paths or light flushing of the travel lane intermittently throughout the portion of the project paved in 2007. This was not observed in the sections placed in the fall of 2006 where the pavement was immediately subject to cooler weather. Rut depth measurements, taken throughout the project, averaged 2.26 mm, with no single measurement greater than 4 mm. All of the measurements were less than 6 mm of rutting allowed by the contract specifications for surface tolerance. Based on these measurements and observations, the pavement is not experiencing shear-flow rutting.

Cores were taken from a number of locations throughout the sections of pavement which were removed and replaced to assess pavement densification and to rule out moisture damage as a cause of the tightening in the wheel paths. . .

Based on the collected data, the tightening in the wheel paths is due to the densification of the pavement under traffic. . . No additional significant rutting will likely occur due to the expected aging of the asphalt binder over the winter" (Prowell affidavit, 14).

With respect to that portion of the pavement which was not removed, Dr. Prowell refers to the findings contained in his April 2008 inspection report which states, in part, that . . . "wheel path tightening observed in the fall of 2007 has been remedied by the scouring action traffic with winter deicing sand and salt. There is no evidence of a rutting or instability problem in the pavement. If the pavement which was removed and replaced in October 2007 would have been left in place, it would have performed equally well" (Prowell affidavit, 15, emphasis in original).

Dr. Prowell opines alternatively that "Even if the 'flushing' was a basis for rejection, it was caused by the Contract 42 specifications . . . together with hotter than normal temperatures" (Prowell affidavit, 17). As a result, claimant contends that even if the occurrence of flushing was a proper basis for rejecting the pavement, it is entitled to payment pursuant to 105-11 of the Contract's Standard Specifications (see Proposal, Exhibit A to McCambley Affidavit, p. 29).

Dr. Prowell's report dated November 19, 2007, annexed as Exhibit B to his affidavit, is notable for its discussion on the PG binder specification. Dr. Prowell states in the report that "[t]he asphalt binder specified in this contract was a PG 64-28 meeting the requirements of AASHTO MP-1. This is a generic specification which does not specify whether or not the binder is to be neat or modified, nor what type of modification may be used" (Prowell report, Exhibit B to Prowell affidavit, p. 6). Dr. Prowell also states in his report that "[u]ntil August 2007, the binder certifications received by Hanson Aggregates from Suite-Kote [sic] stated that the binder was 'neat'(1) . . . On August 15, 2007, Suite-Kote [sic] sent a letter to the New York DOT Materials Bureau stating that these certifications were, in fact, incorrect in that the PG 64-28 was modified with poly-phosphoric acid (PPA)." Dr. Prowell concludes that "even if PPA was related to flushing, Hanson complied with applicable specifications" (Prowell Affidavit, 45).

In opposition to the claimant's motion for summary judgment, defendant proffered the affidavits of Ted C. Shields, Richard Garrabrant and Zoeb G. Zavery. Mr. Shields, an Engineer employed by the Thruway Authority, first disputes Mr. McCambley's assertion that a unilateral change in the PG binder in October 2007 (after the original pavement was placed) indicates that the original specification had been the cause of the flushing. He states that he was present during a meeting at which both Mr. McCambley and Jack Sprague of Hanson Aggregates informed the defendant's representatives that they "could not procure 64-28 PG binder that had not been modified by polyphosphoric acid ('PPA') in time for repaving the project and requested a change to permit the use of PG 64-22. In those circumstances, Thruway Authority Chief Engineer Chris Waite agreed to permit the use of PG 64-22" (Shields affidavit sworn to May 26, 2010, 2).

With respect to the bonuses awarded the claimant, Mr. Shields states that none were relevant to the flushing of the pavement which was ultimately removed and replaced. The bonus for hot mix asphalt (HMA) related to meeting the prescribed air void requirements in a laboratory setting and does not verify the stability of the pavement or relate to the condition known as "flushing" (Id. at 3). The bonus for pavement density quality was based on core samples obtained after the pavement was laid down but before it was subjected to vehicular traffic. In this case, according to Mr. Shields, the pavement exhibited evidence of instability and flushing only after the pavement was opened to vehicular traffic. The third bonus was for pavement ride quality, which relates to the pavement's smoothness. Mr. Shields states that flushing "did not affect the pavement's rideability from the perspective of smoothness" (Id. at 3).

Mr. Shields states that he observed the condition of the subject pavement and that it was "soft and pliable" several weeks after it had been placed (Id. at 4). Referring to 401-2.01 of the Standard Specifications, as amended by the Proposal (Exhibit A to the McCambley affidavit, p. 56 ), Mr. Shields states that the contractor was required to disclose the type and source of any asphalt modifiers included in its hot mix asphalt. He states that the defendant's approval of the job mix formula was based upon false information provided by the asphalt supplier Suit-Kote that the asphalt binder contained no modifiers (Id. at 6). Suit-Kote acknowledged by letter dated August 15, 2007 that its prior certifications were inaccurate in that the binder had been PPA modified (Defendant's Exhibit 7).

Richard Garrabrant, P.E., is the Director of the Thruway Authority's Syracuse Division and rendered the stage II determination denying claimant's challenge to the order requiring removal and replacement of the pavement which is the subject of the force account. In denying the challenge, Mr. Garrabrant explains that although he indicated in his determination letter that the asphalt specification may have been met at the time of placement, it did not meet the specifications at the time of final contract inspection as required by 402-5 of the Contract. This section states, as pertinent here, that "[h]ot mix asphalt will only be accepted, in place, at the time of the Final Contract Inspection by the New York State Thruway Authority, providing it was of satisfactory quality at the time of construction and is still of satisfactory quality at the time of the Final Inspection" (Standard Specifications, 402-5, as amended by the Proposal, Exhibit A to McCambley affidavit, p. 63). Mr. Garrabrant also indicates that at the time of his determination, he was unaware of the fact that the binder had been PPA modified because the claimant failed to disclose all additives as required by 401-2.01 and 402-2.02 of the Standard Specifications, as amended by the Proposal (Exhibit A to McCambley affidavit pp. 56, 59).

Mr. Garrabrant states further that Dr. Prowell's characterization of the visual flushing of the pavement as a temporary aesthetic condition is speculative and baseless:

"The speculation voiced by Dr. Prowell . . . is baseless. . . The appearance of the material (flushing), as observed by me and other Thruway Authority personnel, was a visible indication that something was amiss, but no more than that. The US Department of Transportation Federal Highway Administration's Pavement Distress Identification Manual describes Bleeding as a surface defect. This Manual defines Bleeding (a visually observed surface distress or visually observed symptom of a problem with a pavement) as 'Excess bituminous binder occurring on the pavement surface, usually found in the wheel paths. May range from a surface discolored relative to the remainder of the pavement, to a surface that is losing surface texture because of excess asphalt, to a condition where the aggregate may be obscured by excess asphalt possibly with a shiny, glass-like, reflective surface that may be tacky to the touch.' Further, '. . . the presence of bleeding indicates potential mixture related performance problems . . .' Flushing as used in this subject project is a subset of 'Bleeding' in terms of pavement distress. A new constructed pavement should not exhibit any type of distress or defect. Aesthetics played no part in my decision" (Garrabrant affidavit, 11).

Zoeb G. Zavery, P.E., is employed by the Department of Transportation in the Materials

Bureau with primary responsibility for HMA, which includes authoring design guidance and specifications related to the use of HMA. He revised the Superpave mixture design criteria to improve HMA performance in 2006 and participated in the 2008 revisions to the PG binder specifications. He states that he became aware of problems involving the HMA material furnished and placed by the claimant in 2007 "when some DOT projects in central New York began exhibiting flushing similar to that experienced on the Thruway Authority projects" (Zavery affidavit, 3). Mr. Zavery indicates that the reported flushing was atypical in that it did not manifest itself immediately as is frequently the case when excess fines and asphalt in the mixture is the cause. At the request of the Thruway Authority, the DOT analyzed core samples and performed friction tests. Mr. Zavery states that the friction tests performed by the DOT Materials Bureau in accordance with ASTM E274 showed that much of the pavement fell below the DOT minimum design standard coefficient of 32, referring to an engineering instruction annexed as Exhibit A to his affidavit.

Mr. Zavery also disagrees with Dr. Prowell's alternative conclusion that if visual flushing violated the Contract specifications it was the result of recent changes to the HMA specifications. Mr. Zavery states that although changes to the specifications were made in 2006, "[n]umerous projects with similar traffic levels have been constructed by DOT with no occurrence as observed on the projects at issue. The modification was introduced by the DOT in May 2006: paving with HMA proceeded throughout the 2006 construction season without any reported flushing such as that exhibited on the projects undertaken by Hanson" (Zavery affidavit, 7). While Dr. Prowell indicates that the flushing exhibited on the subject pavement would have disappeared with time, Mr. Zavery states that this has not been the case with two other projects performed by Hanson in Lewis and Jefferson Counties in 2007. Mr. Zavery concludes:

"10. In my opinion, the addition of PPA to the mix by Hanson's supplier, Suit Kote, is the agent that has caused this unstable condition. Since the specifications (air voids and gyration) were changed in May 2006 as described by Dr. Prowell, many projects were placed employing the changes but did not exhibit the unusual or atypical flushing as that on the Thruway Authority projects at issue. It was not until August 2007 that I was involved with several projects that exhibited this atypical flushing. The common factor in all these projects was that the mixture contained PPA. Conversely, projects furnished with binder that contained no PPA did not manifest this type of flushing. Generally, PPA is used by PG suppliers to change the binder grades because it is more economical than other means such as polymer modification. By 2005, however, it had been banned by 14 states . . . [S]ince January 2008 New York has prohibited its use upstate and restricted its use downstate".

In reply to Mr. Zavery's affidavit, Dr. Prowell points out that there are no friction test target requirements in the Contract and that the engineering instruction to which Mr. Zavery referred in his affidavit did not require removal and replacement of the pavement (Exhibit A annexed to Zavery affidavit).(2) Dr. Prowell also states with respect to the friction test results that only 5 of 26 locations in the westbound lane had friction test results less than 32 and all of the test results for the eastbound lane were above 32.

Section 105-11 (C) of the Standard Specifications, as amended by the Proposal, provides for the removal of unacceptable work as follows:

"Removal of Unacceptable and Unauthorized Work: All work which does not conform to the requirements of the contract shall be considered unacceptable unless otherwise determined acceptable under the provisions in 105-04, Conformity with Plans and Specifications.

Whenever the Director, Office of Contracts and Construction Management shall consider it necessary to remove any portion of the work executed under this contract for inspection or for any other purpose, no payment shall be made for such removal or for replacement of the work to satisfactory condition in case such inspection shows that the work was not constructed in accordance with the terms of the contract; nor shall payment be made for the removal or replacement of any work which may itself be satisfactory, but the removal of which is necessary for the replacement of unsatisfactory work. However, is such inspection shows that the work was constructed in accordance with the terms of the contract, payment shall be made to the Contractor for such removal and subsequent replacement at a fair and reasonable price, arrived at through an order on contract for the work performed. No payment shall be made in such removal and replacement situations if work was done or materials furnished without inspection by an authorized New York State Thruway representative . . .

All work shall be in first-class and satisfactory condition at the time of acceptance of the contract . . .

Unacceptable work, whether caused by poor work, defective materials, damage through carelessness or any other cause found to exist prior to the final acceptance of the work, shall be removed immediately and replaced in an acceptable manner . . ." (Standard Specifications, 105-11 [C], as amended by the Proposal, Exhibit A annexed to McCambley Affidavit, pp. 29-30 [emphasis added]).

Claimant contends that the work performed in connection with Contract 42 conformed to the Contract specifications thereby requiring payment pursuant to the terms of 105-11 (C). Defendant, on the other hand, contends that the work did not conform to the Contract requirements in that flushing was observed several weeks after the pavement was placed and friction test results fell below DOT standards.

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978] [citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]) . Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Here, claimant failed to establish its prima facie entitlement to summary judgment on its

force account claim. While claimant established that the pavement met the contract requirements for surface tolerance, there being no rut depth measurement in excess of 6 mm (Standard Specifications 402-3.10), claimant's own expert confirmed that "[v]isual observations indicated a tightening in the wheel paths or light flushing of the travel lane intermittently throughout the portion of the project paved in 2007" (Prowell affidavit, 14). The basis for the defendant's rejection of the pavement was visual flushing as well as the fact that friction test results fell below that expected for new pavements.(3) While the claimant correctly points out that the Contract includes no friction test target requirements, it does include a provision relating to rejection of the pavement based upon visually observed irregularities:

"When the rolling operation is complete, defects, such as shallow ruts, ridges, roller marks, cracking, tearing, segregation, or any other irregularities, as determined by the Engineer, shall not be visible in the pavement. If these defects are present, correct these defects to the satisfaction of the Engineer or replace the pavement at no additional cost to the State" (Standard Specifications 402-3.07 as amended by Proposal, Exhibit A to McCambley Affidavit, p. 152).

Inasmuch as visible irregularities in the pavement provide a basis for requiring removal and replacement at no additional cost to the State, Dr. Prowell's admitted observation of what he termed "tightening in the wheel paths or light flushing" precludes summary judgment in claimant's favor (Prowell affidavit, 14).

Moreover, the opinion of claimant's expert that the flushing observed was a temporary, aesthetic condition which would have resolved itself over time is speculative in nature and insufficient to support a grant of summary judgment. In opposition to the claimant's motion the defendant established both the existence of defects in the pavement and questions of fact as to whether the defects were more than a temporary aesthetic condition which would have dissipated in time. In addition to the admission of claimant's expert, Mr. Shields indicates that the pavement in issue remained "soft and pliable" several weeks after it was placed (Shields affidavit, 4) and Mr. Garrabrant states in his affidavit that he personally observed the "flushing, rutting and inconsistent texture" of the pavement, which had not been ameliorated by the time the defective material was removed (Garrabrant affidavit, 7, 12).

While the claimant contends that the defendant's approval of the job mix formula and its inability to identify the cause of the flushing establishes its entitlement to summary judgment, the evidence submitted by defendant in opposition clearly raises questions of fact regarding these issues.

With respect to the approval of the job mix formula, it is undisputed that the approval was based upon the erroneous certification of the supplier that the asphalt binder was "neat", meaning it was unmodified, when in fact it was modified with PPA (see Shields affidavit, 6; Prowell report, Exhibit B to Prowell affidavit, p. 6; Exhibits 5, 6, and 7 annexed to the Shields affidavit). As to the cause of the alleged atypical flushing, Mr. Zavery states that "the common factor associated with projects demonstrating the atypical flushing . . . is HMA material containing limestone, either as an aggregate blend component or as a constituent in crushed gravel aggregate, and PPA-modified PG binder" (Zavery affidavit, 8). He opined that "the addition of PPA to the mix by Hanson's supplier, Suit Kote, is the agent that has caused this unstable condition" (Zavery affidavit, 10).

Claimant next contends that assuming these facts to be true, the use of PPA-modified asphalt was not prohibited by the Contract and payment is therefore required pursuant to 105-11 (C) (payment shall be made if "inspection shows that the work was constructed in accordance with the terms of the contract"). While the parties point to no express contractual provision prohibiting the use of PPA-modified asphalt, 401-2.01 of the proposal clearly required the contractor to disclose the use of such additives and modifiers:

"For each bituminous mixture required by the plans or the proposal, the Contractor shall formulate and submit to the Engineer, a SUPERPAVE Mix Design and a Job Mix Formula (JMF) that satisfies the requirements of this section and the mixture design criteria as written in Materials Method 5.16, Superpave Hot Mix Asphalt Mixture Design and Mixture Verification Procedures. In addition, the JMF shall state the mineral aggregate sources and types, the grade and source of bituminous material used in the mixture, and the type and source of any asphalt fillers, additives, anti-strip agents or modifiers" (Exhibit A to McCambley affidavit, p. 56 [emphasis added]).

Section 402-2.02 of the Contract's Standard Specification, as amended by the Proposal, similarly requires that the job mix formula "state the . . . type and source of any asphalt fillers, additives, anti-strip agents or modifiers" (Exhibit A to McCambley affidavit, p. 59). It is the Contractor's responsibility to "provide the Engineer with . . . Manufacturer's Certification that the additive to be used meets the specification requirements of the contract" (Standard Specifications, 401-2.04, as amended by the Proposal, p. 58, Exhibit A to McCambley affidavit). Finally, the Contract specifications state that the contractor's "submission of erroneous certification shall constitute cause for total rejection of the involved lot(s) and/or other action as may be indicated by the finding and the specific Work Item(s)" (Standard Specifications, 105-11 [D][1], as amended by the Proposal, Exhibit A to McCambley affidavit, p. 30).

Here, there is no dispute that the manufacturer's certification of the PG binder as "neat" was erroneous (see defendant's Exhibits 6 and 7). As specifically set forth in the Contract "[t]he acceptance at any time of any materials shall not bar its future rejection if it is subsequently found to be defective in quality or uniformity" (Standard Specifications, 106-02, p. 1-79). Defendant's proof that the asphalt binder was PPA-modified as well as evidence that the contractor submitted an erroneous certification that the asphalt binder was unmodified raises questions of fact requiring the denial of the claimant's motion.

To the extent claimant contends that the flushing of the pavement was caused by changes to the specifications in conjunction with hotter than normal temperatures (Prowell affidavit, 19), this contention was squarely refuted by Mr. Zavery.

Based on the foregoing, claimant's motion for summary judgment is denied.

August 26, 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 April 29, 2010;
  2. Affirmation of Douglas S. Gates dated April 26, 2010 with exhibits;
  3. Affidavit of Thomas McCambley sworn to April 26, 2010 with exhibits;
  4. Affidavit of Brian D. Prowell, Ph.D., P.E. sworn to April 23, 2010 with exhibits;
  5. Memorandum of law of Douglas S. Gates dated April 29, 2010;
  6. Affirmation of Eidin Beirne dated May 26, 2010 with exhibits;
  7. Memorandum of law of Eidin Beirne dated May 26, 2010;
  8. Reply affirmation of Douglas S. Gates dated June 1, 2010 with exhibits;
  9. Affidavit of Brian D. Prowell, Ph.D., P.E. sworn to June 1, 2010 with exhibits;

1. The term "neat" refers to asphalt not containing modifiers.

2. In fact, the instruction references treatments to restore the frictional quality of the pavement ranging from resurfacing to micro-surfacing but notes that "[i]t is outside the scope of this . . .[engineering instruction] to discuss the various remedial treatments" (Exhibit A to Zavery affidavit, p. 2)

3. Although the pavement was rejected for the additional reason that the PG high temperature grade test results were below the specified 64, defendant makes no such argument in opposition to the instant motion.