Petition — Marshall v. Daniel Construction Co.
Supreme Court brief1978
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Text
ly THE
Supreme Court of the United States
_— TERM, 1
No. 7 r 160 ¢
JOHNSON, DRAKE & PIPER, INCORPORATED,
Petitioner,
STATE OF NEW YORK,
Respondent.
_________f
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF THE STATE OF NEW YORK
E. Noetes Lowe
630 Fifth Avenue
New York, New York 10020
Attorney for Petitioner
. Cuaries B. Morrveavx, Jr.
630 Fifth Avenue
New York, New York 10020
Of Counsel
=_ oo . ee ES es i ee
el ae hs ion rs
~~
=
e
Cun fF oOo Se Se wh
ES I . hccadtaness indncdeqaseces
Reasons ror GrantTiIne THE Wait:
Porxt I—Certiorar: should be granted to review state
judicial action which has endorsed the ignoring
of fundamental due process where there was re-
ceived at trial a report, admittedly containing im-
proper portions, without cross examination, and
where thereafter the trial judge extensively and
decisively relied upon its improper portions, des-
pite his statement that the improper portions of
the report would be disregarded .............. 8
Porxt II—It is important for the Court to hear this
ease since an interpretation of the New York
Court of Claims Act which condone. a deviation
from normal trial procedures and rules of evi-
dence will set a precedent for the trial of future
construction claims in New York State and else-
EN daneeuwaskecbuwcesutébaedeckecducdloues ll
UTE RRO SARE Se Wary act Re aT Ae ye ee eS 12
ii TABLE OF AUTHORITIES
PAGE
Appendix A, Decision of Court of Appeals, State of
I, ee go a Al
Appendix B, Decision of Appellate Division, Third
Department, Supreme Court, State of New York A3
Appendix C, Decision of Court of Claims, State of
Sada dd ote beak ddd ctélion dkun ee scee A6
Appendix D, Partial Comparison of Claim Report
with Decision of Court of Claims ............. A59
CrraTions
Cases:
Conduit and Foundation Corp. v. State (Ct. Claims,
SEE, ode. SF entcidnsdinedsl cesece 12
Carolina Glass Co. v. South Carolina, 240 U.S. 205 .. 8
Hamling v. United States, 418 U.S. 87 ............. 9
Horoch v. State, 286 App.Div. 303, 143 N.Y.S.2d
Meyers v. United States, 272 U.S. 52 .............
Rosenbloom v. Metromedia, Inc., 403 U.S. 29 ...... 10
Saunders v. Shaw, 244 U.S. 317 ................... i)
United States v. El Paso Natural Gas Co., 376 US.
Gee ctWbe edi cevin cess TIT Tee 7
Wingo, Warden v. Wedding, 418 U.S. 461 (1974) ... 10
Statutes:
New York Court of Claims Act, §8 ............... 3,8,9
——- —
TABLE OF # UTHORITIES
Miscellaneous:
Grey, Due Process: Procedural Fairness and Sub-
stantive Rights (ed. by Pennoch and Chapman)
1977
tl lt i i i i
In THE
Supreme Court of the United States
OCTOBER TERM, 1977
No.
s+.
» 4
Jounson, Drake & Piper, [NconPoraTeD,
Petitioner,
Vv.
State or New York,
Respondent.
i
»
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF THE STATE OF NEW YORK
Petitioner, Johnson, Drake & Piper, Incorporated, a
corporation organized under the laws of the State of
Minnesota, respectfully prays that a writ of certiorari
issue to review the decision of the Court of Appeals of the
State of New York entered in this proceeding on November
15, 1977.
Opinions Below
The opinion of the Court of Appeals is reported at 43
N.Y.2d 677, 371 N.E.2d 786, and 401 N.Y.S.2d 23, and
appears in the appendix hereto (p. Al). The opinion of the
Appellate Division of the Supreme Court of the State of
New York, Third Department, is reported at 49 A.D.2d
776, 372 N.Y.S.2d 242 and appears in the appendix hereto
(p. A3). The opinion of the Court of Claims of the State of
New York is unreported and appears in the appendix hereto
(p. A6).
Jurisdiction
The memorandum decision of the Court of Appeals of
the State of New York sought to be reviewed was filed
on November 15, 1977. A timely petition for rehearing
was denied by the Court of Appeals on February 9, 1978
and this petition for certiorari has been filed within 90
days of that date. The jurisdiction of this Court to
review the decision of the Ccui* of Appeals by writ
of certiorari is believed to be conferred by 28 U.S.C.
§ 1257(3).
Questions Presented
1) Whether due process was denied to petitioner by
the cumulative effect of the actions of the State Court
of Claims, in an action against the State, where the trial
judge:
a) admitted into evidence, over petitioner’s objection,
a State-prepared claim report containing legal con-
clusions, hearsay and opinion statements regarding
which report no meaningful cross examination was
possible, while stating that he would disregard all
objectionable material in the report; but
b) nevertheless based his decision almost entirely upon
the State claim report, mechanically adopting large
portions thereof, ignoring the contrary evidence
presented by petitioner.
2) Whether the action by the State appellate courts,
allowing the Court of Claims Act to be interpreted as to
permit decisive reliance by the Court of Claims upon
the above-mentioned claim report, in lien of testimony
and cross examination, was such a departure from the
rules of evidence and the norms of due process as to be
violative of the requirements of the Fourteenth Amend-
ment.
Constitutional and Statutory Provisions Involved
This case involves the first section of the Fourteenth
Amendment of the Constitution of the United States which
provides as follows: :
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, iberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws. (Emphasis added.)
This case also involves the New York Court of Claims
Act, $8, which provides as follows:
The state hereby waives its immunity from liability
and action and hereby assumes liability and consents
to have the same determined in accordance with the
same rules of law as applied to actions m the swpreme
court against individuals or corporations, provided
the claimant complies with the limitations of this ar-
ticle. Nothing herein contained shall be construed to
affect, alter or repeal any provision of the workmen’s
compensation law. (Emphasis added.)
Statement of the Case
Nature of the Claim
This action arose out of a contract between petitioner,
a Minnesota corporation, and the State of New York, De-
partment of Public Works, entered into in October 1961,
for construction with federal aid of a highway interchange
in Queens County in New York City.
wh ven SO
4
As a direct result of performing the work under this
contract, petitioner and its subcontractors suffered actual,
out-of-pocket losses (job expenditures beyond job receipts)
of over $2,500,000 due to action and misrepresentations of
State officials.
Claim was brought in the New York State Court of
Claims, pursuant to the Court of Claims Act, alleging
breach of contract by the State in that, 1) the State had
misrepresented the foundation work to be performed by
altering before bidding date the design documents pre-
pared by the State’s own consultants; 2) the State had
improperly directed the work of petitioner in the field so
as to cause increased, delayed, and unnecessary foundation
work; and 3) the State had refused time extensions to
petitioner, threatened termination and demanded costly
acceleration of the work to meet the original contract
completion date.
Trial
Trial of the claim herein, before Judge Adolph C.
Orlando of the Court of Claims, took place over 23 days.
Petitioner’s proof included testimony from engineers who
had prepared the contract bid to the State, testimony from
construction personnel who had been on the job daily, testi-
mony from an independent soils and foundation engineer,
testimony from subcontractors of petitioner, and pertinent
records of the State and petitioner (A1-2847).
The State’s case, on the other hand consisted of neg-
ligible direct testimony (A2960-3046) but included a bulk
submission of boxes of correspondence (Exs. Q & R) and
a lengthy ‘‘claim report’’ (Ex. Y), over 200 pages long,
which had been prepared for the State Department of
Public Works by the State’s retained consultants. The
claim report and the correspondence were received by the
trial judge in evidence, over objection (A2975-6, A2865),
even though he acknowledged after a ‘‘quick perusal’’ that
a ee ee |
the claim report contained conclusions, hearsay and ‘‘other
objectionable material’’ (A2979). He stated, ‘‘I’m going
to disregard completely all of the evidence which I feel in
this report that is objectionable in accordance with the.
rules of evidence of this State’’ (A2979-2980).
Following trial, requested findings of fact were submitted
by petitioner and by the State Attorney General (A3271-
3307).
Trial Court Decision
Contrary to his statement at trial, however, the trial
judge did not disregard the many improper portions of the
report but incorporated conclusions, hearsay, allegations
and argumentation therefrom into his decision, in rejecting
virtually all of the petitioner’s claim. Many findings were
made on matters calling for expert opinion evidence, solely
on the basis of hearsay statements taken directly, and
sometimes verbatim, from the claim report. Page after
page of his ‘‘decision’’ can readily be tracked in the re-
port, including verbatim passages and even typographical
errors. A partial comparison of the claim report with the
decision accompanies this petition in the appendix (p. A59).
The trial court refused to pass upon any of the requested
findings of either party (Appendix, p. A57).
Appellate Decisions
On appeal, the Appellate Division, in its brief opinion,
tersely stated that, ‘‘as trier of both the law and the facts,
the lower court was entitled to rely’’ upon the claim re-
port ‘‘to the extent that it deemed justified in reaching its
decision,’’ and apparently took the position that the Court
of Claims cured any error with respect to the admission of
such report into evidence when ‘‘it specifically informed
the attorneys for both parties on the record that it would
disregard any objectionable material contained therein.”’
(Appendix, p. A5; emphasis added. )
6
On appeal to the Court of Appeals, that court agreed with
the Appellate Division, that the State Court of Claims was
entitled to rely upon the claim report prepared by the
State’s consultants, as stated in the decision of which this
petition seeks review (Appendix, p. A2).
The stage in the proceedings at which denial of due
process herein became fully apparent was after trial, at the
time of the decision of the court of first instance. It could
not have been earlier anticipated that the trial judge would
heavily depend upon the report’s improper portions after
having said they would be ignored. (The trial record re-
flects vigorous objection to the exhibit being received
(A2975-2976) and also reflects that meaningful cross exami-
nation could not be conducted because those who actually
prepared the report were not produced by the State. When
questioned as to the report on cross, the witness who iden-
tified it responded, “I don’t remember’’ or “I don’t know,”
over fifty (50) times (Tr. A2980-3046) and acknowledged
“I didn’t prepare any of the report” (A3036).)
In petitioner’s brief to the intermediate appellate court,
it was pointed out that the State report had been prepared
by persons whom petitioner had had no opportunity of
cross-examining, that the trial judge had not ignored the
improper parts of the report as promised but had para-
phrased them, and that petitioner’s right to an independent
judgment by the court on proper evidence had been ignored.
The Appellate Division passed upon the process followed,
stating that the lower court was entitled to rely upon the
claim analysis.
At the Court of Appeals of the State of New York, the
procedural unfairness of the trial court was again pointed
out, petitioner noting in its briefs that the usual presenta-
tion of testimony by experts subject to cross-examination
had been dispensed with, that the trial judge had not ig-
nored the conclusions, hearsay and opinion statements in
the report but had mechanically adopted them, and that
7
the trial court had delegated its judicial function to the
executive branch instead of independently discharging its
responsibility (citing United States v. El Paso Natural
Gas Co., 375 U.S. 651, 656, 657).
Petitioner pointed out that this improper procedural
shortcut substituted for a decision on the trial evidence the
pre-trial determination of the same State administrative
agency involved in the litigation. Petitioner noted that the
irregular procedure followed by the court was contrary to
the intent of the Constitution and contrary to the concept
of the separation of powers and judicial independence, in
the name of expedieney (citing Judge Brandeis’ dissenting
opinion in Meyers v. United States, 272 US. 52, 293). It
was pointed out that the claim report had been the core of
the State’s defense (the State having called only four wit-
nesses: the witness who identified the claim report, who
gave little direct testimony (A2960-3046), two State em-
ployees who merely identified records (A2850-2869, A2945-
2960), and an auditor on damages (A2869-2944)); in this
context, petitioner’s fundamental right to cross-examina-
tion and to a reasoned decision on proper evidence had been
substantially violated.
The Court of Appeals passed upon the question thus pre-
sented, rejected petitioner’s argument and specifically
approved the trial court’s manner of use of the claim re-
port.
:
:
POINT I
Certiorari should be granted to review state judicial
action which has endorsed the of funda-
proper portions of the report would be disregarded.
New York State has waived sovereign immunity and has
agreed to be subject to suit in contract cases. Section 8
of the New York Court of Claims Act provides that the
State waives immunity and consents to have its liability
determined in accordance with the same rules of law (both
as to evidence and substantive law (Horoch v. State, 286
App.Div. 303, 143 N.Y.S.2d 327)) as applied in actions
against individuals or corporations. While a state cannot
be compelled to provide a means by which a suit can be
brought against itself (Carolina Glass Co. v. South Caro-
lina, 240 U.S. 305 (1915)), once having thus waived immu-
nity and having agreed with those with whom it contracts
to being subject to suit, New York cannot allow its courts
to function in a manner that ignores fundamental due
process. At the very least, it cannot restrict the waiver by
a curtailment on the statutorily established judicial pro-
cedure with respect to state contracts entered into in the
expectation of the availability of a judicial remedy.
Even if it be argued (as the State has) that it is ex-
pedient to dispense with the normal rules of evidence in
a large complicated case against the State, there cannot be
one law of evidence and procedure for the sovereign and
another for those who contract with the State, in the face
of the language of Section 8 of the Court of Claims Act.
ee ne
Here due process was violated by the cumulative effect
of:
lack of advance notice of the claim report, the heart
of the State’s case, not seen by petitioner before trial;
the improper receipt by the court of the report as
“evidence” when it was a multi-authored conglomer-
ate of hearsay, conclusions and opinion on the whole
of petitioner’s claim; and
the lack of confrontation and cross examination of the
report’s largely anonymous authors.
Additionally, petitioner was precluded from offering re-
buttal testimony to the improper parts of the report
because those parts of the report were to have been dis-
regarded and ignored by the trial court, ie., treated as
though never before the court at all. The trial court’s
about-face in its decision, and mechanical adoption of the
report, thus not only improperly mingled State executive
and judicial functions but also denied petitioner an oppor-
tunity to rebut the State’s case. Prior to the decision,
petitioner had a right to assume that the court would do
what it said it would do—ignore the improper parts of the
report. Rebuttal was unnecessary. Analogously, in
Saunders v. Shaw, 244 U.S. 317 (1917), the act complained
of was similarly done unexpectedly when the complaining
party no longer had any right to add to the trial record.
Justice Holmes of this Court said that, “‘it would leave
a serious gap in the remedy for infraction of constitu.
tional rights,” if a party were bound to contemplate a
later decision by a court which would render trial proof
necessary which, based upon trial rulings. was apparently
unnecessary (244 U.S. at 320; see also discussion of
Saunders in Hamling v. United States, 418 U.S. ST (1974).
dissenting opinion of Justice Brennan at p. 14%).
This Court, ought to scrutinize closely the procedural
fairness, impartiality and neutrality of the State--stab-
-
-
:
10
S
lished forum where large claims against the State are
be judicially determined. To allow reliance by the State
courts upon a report prepared under the aegis of the
involved administrative agency, naturally inclined to
cover up or rationalize its own mistakes and misrepre-
sentations, is to denigrate the judicial process and slide
into judicial inertia at the ..pense of a fair hearing. (Cf.
Grey, Due Process: Procedural Fairness and Substantive
Rights (edited by Pennock and Chapman) New York, 1977,
pp. 182, 187).
The procedures by which the facts of a case are deter-
mined by the factfinder assume an importance fully as great
as the validity of the rule of law applied, as this Court
noted in Wingo, Warden v. Wedding, 418 U.S. 461 (1974).
In testing whether state law applied by a state court is
action within the due process clause of the Fourteenth
Amendment, this Court can well examine the circumstances
of the factfinding process in order to make a constitutional
judgment (Rosenbloom v. Metromedia, Inc., 403 U.S. 29,
53, 54 (1971)).
Related to the trial court’s complete dependence on the
report, but a separate violation of petitioner’s due process
rights, was the failure and refusal of the trial court to pass
on issues tendered at the trial and covered in the requested
findings. If the essence of due process is to “proceed upon
inquiry and render judgment only after trial,” due process
was not afforded here where the substance of the decision
was written before the trial began.
ay
POINT Il
It is important for the Court to hear this case since
interpretation of the New York Court of Claims
Tf State action, whether under the authority o1 legisla-
tive or judicial interpretation, deprives an individua! of a
fundamental constitutional right, this Court may review
such action. The necessary effect of the action of the State
courts herein is to interpret the Court of Claims Act so as
to establish different rules for the trial of construction
claims deemed complex, rules so relaxed as to be repugnant
to due process. This was the rationale urged by the Attor-
ney General on appeal who argued that the case was “a
multi-cause of action construction contract claim involving
technical subject matter” (Br., p. 43); this view, was seem-
ingly accepted by the appellate courts. (This case was
actually far less complex than many construction contract
cases routinely decided elsewhere on a reasoned review
of the valid evidence.)
There should be equal standing before the courts of the
State and equal entitlement to due process whether a
claimant is in the State Court of Claims as a resident
landowner in an appropriations claim or as a foreign cor-
poration in a construction contract claim. A distinction be-
tween ordinary cases and construction cases for the appli-
cation of the rules of evidence is unsupportable.
This case has prospective significance because similar
situations are bound to recur in future cases under the
New York Court of Claims Act, and probably in other
states as well under parallel state law, if this case is al-
lowed to stand as precedent. Already, in at least one
12
other case in the New York State Court of Claims subse-
quent to this case, the Attorney General urged admission
of a similar report in lieu of the usual procedure for pre-
senting evidence, in the same fashion, to save time; in cit-
ing this case, the Attorney General noted that “new law”
was involved. (Conduit and Fowndation Corp. v. State
(Ct. Claims, Claim No. 54809, Tr. 3642, 3651)).
Thus, certiorari is particularly appropriate to clarify
the law with respect to the future construction claims
which will recur under federal aid and federal grant pro-
grams and in which the same questions with respect to
due process, and with respect to the Court of Claims Act,
are bound to arise.
Conclusion
Wuererore, petitioner respectfully prays that a writ of
certiorari be granted.
Respectfully submitted,
E. Nosites Lowe
630 Fifth Avenne
New York, New York 10020
Attorney for Petitioner
Cartes B. Motiveavx, Jr.
630 Fifth Avenue
New York, New York 10020
Of Counsel
a ll a tt Ail le I ti A A a A “a —
Al
Appendix A, Decision of Court of Appeals,
State of New York.
STATE OF NEW YORK
COURT OF APPEALS
MEMORANDUM
This memorandum is uncorrected and subject to re-
vision before publication in the New York Reports.
|
—_
No. 528
Johnson, Drake & Piper, Incorporated,
Appellant,
vs.
State of New York,
Respondent.
—_
_
(528) Charles B. Molineaux, Jr.. & Arthur Karger,
NY City for appellant.
Louis J. Lefkowitz, Attorney-General (Richard J.
Dorsey & Ruth Kessler Toch of counsel) for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed,
with costs.
Appellant's right, if any, to damages for claimed over-
runs in the pile foundation work and in consequence of
claimed deijays in the work depends on the determination
of mixed qnestions of fact and law to be resolved on the
basis of the evidentiary facts established and the inferences
fairly to be drawn from such facts. The same is true with
respect to the assertions of liability based on alleged mis-
representations of the State affecting the pile foundation
A2
Appendiz A, Decision of Court of Appeals,
State of New York.
work (including alleged bad faith on the part of the State)
and as to the scope of cofferdam work. These issues were
resolved, expressly or by necessary implication, in favor
of the State by the Court of Claims and such resolutions
were later affirmed at the Appellate Division. As such,
there being evidence in the record for their support, they
are now beyond the scope of our review. We agree with
the Appellate Division that, in the light of the express
qualifications on its use stated by the trial judge, the court
was entitled to utilize the claim analysis prepared by the
State’s project designer and consultant to the extent that
it deemed justified in reaching its decision.
Order affirmed, with costs, in a memorandum. All] concur.
Decided November 15, 1977
mer —
a eS ee eee .
A3
Appendix B, Decision of Appellate Division, Third
Department, Supreme Court, State of New York.
Supreme Covurt—Appe.tiate Drvision
Tamp Jvupicia, DepaRTMENT
September 11, 1975 25559
uw
~ 2
Jonnson, Draxe & Piven, [wcorporaTen,
Appellant,
v.
State or New Yorx, Respondent.
(Claim No. 48874.)
i.
a
Appeal by claimant from a judgment of the Court of
Claims, entered October 24, 1974, which dismissed causes
of action First through Sixth of the claim herein, except
for certain awards made with respect to parts of the Sec-
ond, Fourth and Fifth causes of action totalling $16,657.07,
interest thereon and interest on the amount of the pre-
viously severed Seventh cause of action.
In the fall of 1961, claimant entered into a contract with
the State of New York for the construction of a portion
of the new Van Wyck Expressway and its interchange
with the existing Long Island Expressway. Included in
the work specifications were the erection of an elevated
viaduct on bridge piers to cross over the Long Island
Expressway and the construction of various ramps, serv-
ice roads and drainage lines, and claimant completed the
project to the apparent satisfaction of the State. On
this appeal, however, claimant contends that the State in-
creased the cost of completion through various breaches
A4
Appendix B, Decision of Appellate Division, Third
Department, Supreme Court, State of New York.
and, therefore, it seeks monies in addition to the amounts
set forth in the itemized contract payment schedules.
Although numerous grounds ior additional payments
were asserted in the lower court, here claimant focuses
principally on only three, namely: that the work specifica-
tions misrepresented the depths to which piles supporting
the bridge piers would have to be driven; that the State
implied that the necessary cofferdams could be built at a
cost of $176,000 by refusing to accept bids therefor in
excess of that amount; and that the State unreasonably
ordered acceleration of the construction, thereby disrupt-
ing the sequence of the work and increasing its cost.
With regard to the depths to which the piles were ulti-
mately driven, there were concededly substantial overruns
from the work specifications. However, claimant has al-
ready been compensated for the increased footage at the
unit price of $4.50 per foot as provided in the contract.
Moreover, prior to the submission of its bid, claimant
made only the most cursory examination of the project site
and of information relative thereto readily available from
the State and, thus, exhibited an attitude of complete in-
difference towards its contractual obligation to base its
proposal upon information gained from ‘‘ personal investi-
gation and research and not from the estimate of records’’
of the State (cf. Johnson, Drake & Piper v. State of New
York, 31 A D 2d 980; Johnson, Drake & Piper v. N. Y. State
Thruway Auth., 22 A D 2d 321). As for the use of the
dynamic formula technique for determining the depths to
which the piles were to be driven, claimant was put on
notice by the work specifications that this technique was to
be utilized and, consequently, even if its use did result
in longer piles than would static load tests, claimant’s bid
should have been adjusted accordingly.
A5
Appendia B, Decision of Appellate Division, Third
Department, Supreme Court, State of New York.
The remaining grounds for relief relied upon by claim-
ant are likewise without merit. Assuming arguendo that
the State did imply that the cofferdams could be built for
$176,000, claimant did not prove that construction at such
a cost was impossible, and, furthermore, there is ample
support in the record for the lower court’s decision that
claimant’s own errors in cofferdam design, especially its
selection of inadequate sheeting, caused the lost time and
unanticipated costs of dam construction. Similarly, in
its attempt to accelerate the work, the State was merely
seeking the completion of the project on the agreed upon
date and, again, numerous instances in the record support
the lower court’s determination that the delays and the
need to accelerate were the fault of claimant.
Finally, we would note that, as trier of both the law
and the facts, the lower court was entitled to rely upon
the claim analysis prepared by the State’s project designer
and consultant, Tippetts-Abbett-McCarthy-Stratten, to the
extent that it deemed justified in reaching its decision,
and it specifically informed the attorneys for both parties
on the record that it would disregard any objectionable
material contained therein.
Judgment affirmed, with costs.
Greensiort, J.P., Sweeney, Kane, Marw and Reynoxps,
JJ., concur.”
A6
Appendix C, Decision of Court of Claims,
State of New York.
Decision
STATE OF NEW YORK : COURT OF CLAIMS
Ciam No. 48874
Decision
7°
—
Jounson, Drake and Pirer, Inc.,
Claimant,
—against—
Tue Strate or New York,
Defendant.
%
—
APPEARANCES:
For the Claimant:
Norton, Sacks, Molineaux, & Pastore, Esqs.,
by Charles B. Molineaux, Esq.,
of Counsel
For the State:
The Honorable Louis J, Lefkowitz,
Attorney General, by J. Joseph Murphy
and Joseph T. Hopkins, Assistant Attorneys
General, of Counsel ;
OrLanpo, J.
The above-entitled action duly came on for trial at a term
of this Court held at the Court of Claims, 270 Broadway,
New York. The Claimant and the State appeared by Coun-
sel, as noted above. The Court, having heard all the proofs
of the parties and the arguments of Counsel, and the case
having been finally submitted to the Court and due delibera-
tion having been had, finds and decides as follows:
ee Se ae
AZT
Appendiz C, Decision of Court of Claims,
State of New York.
The claim was duly and timely filed with the Clerk of the
Court of Claims and with the Attorney General on Novem-
ber 3, 1967. With a single exception, it has not been as-
signed or submitted to any other officer, Coyrt or tribunal
for audit or determination. The sole exception is an assign-
ment of monies concededly due and paid to the North-
western National Bank of Minneapolis by order of Court
of Claims Judge Alexander Del Giorno dated December 21,
1967. The claim of the Northwestern National Bank of
Minneapolis was dismissed on the ground that the bank
was not a necessary or proper party.
Seven Causes of Action were alleged in the claim and
the total amount for which judgment was originally sought
was $4,895,899.02. In its Proposed Conclusions of Law the
Claimant sets forth damages in the sum of $3,921,510.70 and
interest.
On December 20, 1967, an order was filed severing the
Claim and awarding to the Claimant for the Seventh Cause
of Action in the sum of $294,401.39 and further awarding
the Claimant the return of bonds having a par value of
$66,000. The question of interest, if any, on the sum and
bonds involved in the Seventh Cause of Action was de-
ferred until the determination of the balance of the claim
and the remaining Causes of Action.
The claim arises from alleged breaches of contract known
as FAVWE 61-3 and FIHHE 61-1, which was entered into
on October 31, 1961 by the Claimant and the Department of
Public Works (now known as the Department of Trans-
portation) of the State of New York. The contract called
for the construction of an interchange of two arterial high-
ways, Van Wyck Expressway and the Long Island Express-
way, the former requiring the construction of an elevated
portion of the Van Wyck Expressway Extension on bridge
piers (41 piers for approximately % of a mile), construc-
tion of four ramps (also on piers) and construction of
Cm A SM
A8
Appendiz C, Decision of Court of Claims,
State of New York.
ramps on ground level; and of a portion of Interstate
Route Connection 514. The construction included, but was
not limited to, foundation work, driving of piles, erection of
structural steel for the roadway, concrete paving, service
road, access ramps, retaining walls and sewers, relocation
of a road, park roads, drainage and waterline.
The contracted project was designed for the State, and
its construction was supervised, by .he private engineering
and consulting firm of Tippetts-Abbett-McCarthy-Stratton
(TAMS). In Jeauary 1959, design work for the project
was begun as yart of a feasibility study contract between
TAMS and the Triboro Bridge and Tunnel Authority. In
April 1960 TAMS entered into a new contract with the
State for the design and preparation of the documents for
Contracts FAVWE 61-3 and FIHHE 61-1.
The First Cause of Action, the basic and major cause
from which the others proliferate, alleges a Contract, dated
October 30, 1961, between the State and the Claimant, the
performance by the Claimant of all the terms and condi-
tions of the Contract . . . “as well as certain other work
which it was directed to perform .. .”, the acceptance by the
State, on August 13, 1964, of the Contract as performed,
and the receipt by the Claimant on or about August 30, 1967
of the Final Agreement and Final Estimate.
The First Cause alleges that:
“The within claim is for the increased cost, expense,
and damage incurred by Johnson in the performance
of the work under the said contract occasioned by the
acts, faults, errors and omissions of the State of New
York, its agents, representatives, servants and/or
employees, for extra and additional work done in con-
nection with the said contract, for damages, for breach
of said contract and for work done under said con-
tract” (Ninth Paragraph)
RU Rinciean ics cise 2 Lue chen Se wee Se ee ee
A9
Appendia C, Decision of Court of Claims,
State of New York.
The First Cause further alleges that:
“The contract, among other things expressly repre-
sented and warranted and made statements concerning
conditions as to the physical character of the soil at
the site of construction, the type of piles necessary,
the method of driving said piles, the expected length of
said piles, construction of required cofferdams, and
that fills could be placed without disturbance to the ex-
isting river bottom, which representations, warranties
and statements Johnson properly relied upon in the
preparation and submission of its bid”. (Tenth Para-
graph)
The State’s Demand for Bill of Particulars sought to
have the Claimant “set forth in haec verba each and
every representation, warranty and statement .. .” in re-
spect of the details of the allegation.
The Claimant’s Verified Bill of Particulars (Paragraph
3 (1) through 3 (6)) is not responsive to this demand. The
response makes repeated general references to the Contract
Proposal (236 pages), the boring logs, and the Contract
Drawings (301 plates). In Paragraph 3 (2) it refers to
“Contract Documents”, “its analysis of all the contract
documents” and “contract representations”. Had the
Claimant’s Verified Bill of Particulars set .. rth in haec
verba, each representation, warranty and statement, as re-
quired by the Demand for a Bill of Particulars, this Court
would net be put to speculating whether any representa-
tion, warranty or statement can possibly be inferred from a
reading of the boring logs and Contract Drawings. The
Claimant has failed to do so. The burden of a responsive
presentation of such material in a form intelligible to the
Court should have been but was not borne by the Claim-
ant. Representations, warranties or statements cannot be
inferred from linguistic nuances.
Al0
Appendiz C, Decision of Court of Claims,
State of New York.
The Eleventh Paragraph of the First Cause of Action
alleges that the Claimant encountered materially different
soil conditions from those represented or warranted and
that, because of such conditions, “. . . and the directives,
acts, faults, delays, errors and omissions of the State . . .
the performance of pile driving and foundation work under
the contract was disrupted and rendered more expensive
than contemplated or intended by the contract .. .”
The Claimant’s Verified Bill of Particulars (Page 4.
Paragraph 4, to Page 10) repeats but fails to particularize
the general language of the claim that “soil conditions en.
countered by Johnson, Drake and Piper were materially
different from those represented by the State and con.
templated by the parties .. .”’
The Contract Proposal deals admonitorily and specif.
ically with the nature and extent of the contract's responsi.
bilities. (Special Foundation Notes, Pages 29 through 31).
The contractor's
“Special attention is directed to the effect of special
subsurface conditions on the contruction operations.
Any work required to support or to assist the i
of equipment, forms, ete., due to the special subsurface
conditions shall be included in the unit price bid for
the appropriate items . . . the contractor's attention,
however, is called to the fact that the information ob.
by Paragraph 3 of the contract agreement . . In the
event that subsurface conditions vary from those
shown by the explorations, the contractor will still be
required to establish the foundations to the necessary
load-carrying capacities as directed by the Engineer”
(Page 30, 31).
All
Appendiz C, Decision of Court of Claims,
State of New VY ork.
The Claimant's Project Engineer, Calvin L. Zemsky, testi-
fied under cross-exammastion that be had pot examined the
organic silt, and that the Claimant had received a copy of
the State's boring logs of core samples which were taken
from the earth at different levels. He knew that those sam-
pies were available to prospective bidders.
The Clairmeant was clearly indifferent to the responsi-
bilities and obligations it had aseumed under the Contract
Proposals. Relevant portions of Zemsky's cross-cxatmina-
thon follow:
Q. ... Now did you seeure any boring information
from the Babylon (fice! |
A. Net personally, but the company secured it.
Q. And just what information, to your knowledge,
did they secure!
A. Well, there was a set of boring sheets that came
down from either District 10 or Albany. 1 don't know
where, bat they came dows with the set of plans or im-
mechately after that to the bid room.
Y. De you have any personal knowledge as to how
that infortnat.on was acquired!
A. Ne, es.
Y. .. . Bat you made so persenal investigation in
either Habylen or 9 the Albany Offe< 1
A. Ne, sir.
The Court: No personal inve-tigation as to what!
As to borongs!
Y. Of the borings, ar of the boring or of soils in.
fortnation !
A. Ne, sir.
Y. Ded you make any ‘equiry from what we cal!
TAMS Sethe Departmen.
a a sisi
Al2
Appendiz C, Decision of Court of Claims,
State of New York.
Mr. Murphy: By TAMS, your honor, I mean
Tippetts-A bbett-McCarthy-Stratton.
The Court: I understand.
Q. Did you make any inquiry as to their department
as to what information they had?
A. No, sir.
Q. To your knowledge did anyone from your com-
pany make any such inquiry?
A. Not that I know of.
Q. And you are aware that the State of New York
has a rather extensive soils department, are you not,
down in Albany?
A. I know they have the department, as to how ex-
tensive it is I have no knowledge.
Q. You made no inquiries as to subsoil conditions at
that department?
A. No, sir.
Q. Did you know whether anyone from Johnson,
Drake & Piper did?
A. Not that I know of.
Q. Did you consult with any private consultants as
to soils conditions?
A. No, sir.
(Transcript, Vol. V, Pages 30 through 33)
Q. Mr. Zemsky, this morning we were talking about
pile driving, examination of soils. Remember? I
asked you whether or not you examined this organic
silt by squeezing it and I think your answer was no,
you hadn't. Whatever it was, you were aware, and I
think you received, through someone else in your
organization, a copy of the boring logs, did you not,
prepared by the State?
Al3
Appendiz C, Decision of Court of Claims,
State of New York.
A. Yes, sir.
Q. And you were aware, were you not, that when
those boring logs were taken core samples were taken
from the earth at different levels and recorded on the
boring logs?
A. Yes.
Q. And you realize, do you not, that those samples
are available for prospective bidders and you were so
advised by the Proposal?
A. It is in the Proposal that they are.
Q. Did you or anyone of your organization go to
Babylon to examine these core samples or any place
else?
A. I did not go, and as far as I know no one from the
organization went.
(Transcript, Vol. V, Pages 92, 93)
> >. >.
Q. Now I believe you testified you reviewed the bor-
ings on this job? Is that correct?
A. Well, it is a question what you mean by reviewed.
I looked at the borings on the job.
Q. Did you have occasion to use them in the field,
to compare what you found in the field as to what the
borings showed?
A. We had the borings in the field and—we looked
at them but didn’t make a detailed study between the
borings and the actual field condition.
(Transcript, Vol. V, Page 144)
The Claimant had been informed that:
“Subsurface explorations have been made for this
project at locations indicated on the Plans. The rec-
ords of these explorations are available to bidders for
their expection at the «fice of the District Engineer,
District No. 10, Babylon, L. I New York, and at the
Al4
Appendix C, Decision of Court of Claims,
State of New York.
office of the Deputy Chief Engineer—Bridges, Grade
Separations and Structures, Albany, New York. Sam-
ples of the material encountered, where samples have
been taken, may be inspected at the District Office.
The foundation designs for this project have been
selected after due study and deliberation of the results
of the subsurface explorations” (Special Foundation
Notes, Contract Proposal, Page 29)
The claimant had been advised that the State anticipated
certain types of subsurface materials would be encountered
in the construction area. These materials were described
(1) a layer of miscellaneous fill varying from about
5 to 40 feet in thickness below the ground surface.
This fill may consist of sand, silt, cinder, brick,
wood, ete. There is little or no miscellaneous
fill, however, in a narrow bank along the banks
of the Flushing River.
(2) A stratum of organic silt or peat under the mis-
cellaneous fill or below the bottom of the Flushing
River. The thickness of this stratum varies within
the wide limits. It extends as much as 70 to 80
feet below ground surface in some locations, while
little or no organic silt may be found in the area
of relatively higher ground along the easterly
boundary of the project area.
(3) A sand and silt deposit under the organic silt.
No bedrock was encountered within the depth of
borings made for this project. (Special Founda-
tion Notes, Contract Proposal, Page 29)
In an earlier case, the same Claimant against the New
York State Thruway Authority (22 AD 2nd 321), the
Al5
Appendiz C, Decision of Court of Claims,
State of New York.
Court said:
**The bidder was adequately warned that the informa-
tion to be obtained in connection with the site and its
environment and the conditions affecting the work
were to be secured by personal investigation and re-
search and that there was to be no exclusive reliance
on estimates or records of the State or the Authority.
The contractor was informed that there were records
of subsurface explorations available for review by
interested parties, but it did not look at them. It
made no inquiry about possibility of the presence of
sand and did not examine the State’s boring of the
area although they were available. The claimant’s
representatives did not see what they should have
seen and made little or no effort to take advantage
of the State’s data about the site. Their entire in-
vestigation was casual, cursory and inadequate. The
trial court properly determined that the contractor’s
investigation was not conducted with reasonable care
for if it had been it would have been obvious that
there was sand on the bottom of the face, gravel and
sand mixture in the middle of the face and gravel on
top of the open face. ‘The claimant saw fit to make
its bid without resort to these common and simple
safeguards. It may not now secure from the court an
alteration of its contract as a substitute for the care
and prudence with which the business man of aver-
age caution would exercise in serious undertakings’.
(Niewenhous Co. v. State of New York, 248 App.
Div. 658, 659).”’
The alleged increases in cost to the Claimant under the
First Cause of Action, all allegedly ‘‘without fault on
ite part’’ (Par. 12) are set forth in Schedules A through
I, attached to the claim, in the total amount of $2,414,230.06.
Al6
Appendiz C, Decision of Court of Claims,
State of New York.
Schedule A claims increased cost ($73,601.81) because
Claimant used steel sheeting for certain piers (ML-13 NB,
ML-16 NB, ML-21 NB, ML-28 SB) whose conditions, as
represented by the contract, would have permitted the use
of wood sheeting.
Page 125 of the Contract Proposal, under Item 83 X
states that the relevant general specifications for Tempo-
rary Sheet piling apply. It states, in part:
-'The contrateor, at his option, may use either timber
or steel piling or H-Section steel piles of adequate
cross section and length with timber plank interpile
sheeting’’.
The choice of construction methods or materials was the
Claimant’s sole responsibility. The Claimant’s use of
wood sheeting showed a disregard of the conditions indi-
eated in the Contract Documents and either inadequate or
no pre-bid investigation of .
Schedule B claims additio cost ($77 680.61) in re-
moving excessive excavation materials and stabilizing pier
excavations at proper elevations.
The Claimant’s pier excavation to reduce excessive
heave, before and after pile driving, should have been
within sheeted excavation to a sufficient depth below the
bottom of the excavation. The responsibiilty, under the
contract for designing and providing adequate temporary
sheeting and bracing, rested with the Claimant and it was
not required to submit its design for review by the Engi-
neer. The Claimant chose to over-excavate to remove
excessive heave rather than to provide adequate sheeting
as indicated by the terms of the contract. On-site obser-
vation and evaluations of soil conditions would have fore-
warned the Claimant against such error.
The claim for increased cost for the stabilization of the
subsoil, of the pier subgrade, is governed by Page 30
Al7
Appendiz C, Decision of Court of Claims,
State of New York.
of the Contract Proposal which states, in part:
‘Special attention is directed to the effect of special
subsurface conditions on the construction operations.
Any work required to support or to assist the handling
of equipment, forms, ete. due to the special subsurface
conditions shall be included in the unit price bid for
the appropriate items’’.
The cost of stabilizing the subgrade was part of the
Claimant’s contractual obligation and the cost should have
been included in the bid price of the appropriated items.
Schedule C claims increased cost ($964,647.60) in re-
spect of driving cast-in-place piles. This claim arises
from the Claimant’s inaccurate evaluation of the exist-
ing soil condition about which it was forewarned in the
boring logs and on Page 29-31 of the Special Foundation
Notes of the Contract Proposal.
The subsurface conditions indicated an indefinite length
of piles to be driven. The Claimant, nevertheless, chose
for use a pile which is more costly according to its alle-
gation, when driven to a length in excess of 80 feet. The
total driven length of closed end cast-in-place concrete
piles, found acceptable and paid for in the Final Estignate
was 357,395 feet, an increase in driven length of approxi-
mately 25% above the estimated quantity.
The presence of obstructions during pile driving and the
method for payment for the removal of these obstruc-
tions are dealt with as a responsibility of the Claimant
on Page 30 of the Contract Proposal.
The claim for payment costs due to delays incurred by
snbeontractor Raymond International, Inc., is unfounded
inasmuch as the delays occurred primarily because of a
lack of coordination between the Claimant and its subcon-
tractor and also because the improperly designed coffer-
Als
Appendix C, Decision of Court of Claims,
State of New York.
dams failed when pile driving equipment was placed on
their perimeter.
Schedule D, claiming additional cost ($885,903.60) for
the construction and excavation of temporary cofferdams
(Item 82S), in the course of bridge pier construction along
the Flushing River, is predicated on soil conditions en-
countered which were, allegedly, materially different from
those indicated in the contract.
The Claimant alleges that the soil conditions encountered
made it impossible to construct cofferdams without driving
long heavy section steel sheet piling into firm subsurface
material; that increased cost was incurred because of the
addtional time required to drive sheeting and to excavate
material; that there was the necessity for a greater quan-
tity and heavier and longer section of steel sheeting and
for furnishing additional equipment to drive and extract
the piling and the increased incident of damaged and cut
sheeting.
The Claimant was adequately forewarned of the sub-
surface conditions in the Special Foundation Notes of the
Contract Proposal, Page 29. The Claimant was further
forewarned that certain specified locations would require
the use of surcharge to stabilize and consolidate com-
pressible material and that the surcharge material was not
to be removed without the direction of the Engineer. Other
references to poor foundation materials can be found in
the Contract Proposal.
The design and the execution of cofferdams as a way
of providing dewatered conditions for the construction of
various foundations shown on the plan was left to the
judgment of the contractor. It was allowed by the Con-
tract Proposal (Page 124, Item 82S) to suggest any other
means of accomplishing the result which would be ac-
ceptable to the Engineer. The Claimant’s attempt to con-
Al9g
Appendiz C, Decision of Court of Claims,
State of New York.
struct cofferdams of wood sheeting and AP3 steel sheet-
ing failed. A Z-type sheeting finally prevailed.
Nothing in the record would justify the Claimant’s
allegation that the contract implied which cofferdam sheet-
ing was indicated in the contract drawings. On the con-
trary, the Contract Proposal (Page 124) states that Public
Works Specifications, Item 82 (Page 369), apply, as
follows:
‘*Cofferdams may be constructed of earth, earth-filled
bags, sheet piling or any other materials which the
Contractor may elect to use. The foundations shall
be placed with the cofferdams in an unwatered con-
dition, unless otherwise indicated on the plans. Un-
watering equipment and any necessary bracing shall
be of adequate quality and capacity and shall be so
arranged to permit their proper functioning in
connection With the cofferdams’’.
On the subject of payment, the Contract Proposal (P
124) provided: got cng
‘*‘where the cofferdams are so indicated no separate
payment will be made for temporary sheeting in the
respective locations’’.
The claimant bore sole responsibility for the selection
of the wood sheeting and the AP3 steel sheeting which
resulted in the cofferdam failures (at ML-12SB, ML-13SB,
ML-14 NB, ML-14SB, ML-22NB, ML-23NB and ML-27SB).
The cofferdams failures were, in turn responsible for the
retardation in the Progress Schedule of the pile-driving
operations as pointed out in a letter from TAMS to the
District Engineer’s Office dated September 20, 1962.
The Schedule D claim for excavation cost in the sum of
$104,920.12 (which included $28,614.09 for truck and dump
.
A20
Appendiz C, Decision of Court of Claims,
State of New York.
charges and $52,643.62 for direct labor charges) is predi-
cated on the claimant’s failure to design and construct
adequate cofferdams to cope with the condition of organic
silt. Forewarning was given to the claimant of this condi-
dition in the Special Foundations Notes of the Contract
Proposal (Page 29). The claimant bore responsibility
for the disposal of the excavation material away from the
site in accordance with the provision on Page 49 of the
Contract Proposal that:
‘* _ _ gil materials excavated under Item 5S, Trench,
Culvert and Bridge Excavation shall become the prop-
erty of the Contractor and shall be disposed of away
from the site.”’ =
The effective date of the Contract was October 31, 1961
and the date of completion was within 24 months of that
date. The Progress Schedule, dated November 28, 1961,
required piles to be driven beginning December 1961 and
to be completed by December 1962. There was no specific
indication in the Progress Schedule of a completion date
for cofferdams, but, as a practical matter, they had to be
constructed sometime before the piles could be driven.
Work began on the cofferdams on June 4, 1962, a loss
of approximately 7 months of the 24 months allowed for
the completion of the entire contract.
On June 4, 1962 the Contractor commenced, and on June
18, 1962, completed construction of cofferdam ML-12SB
of wood sheeting. As a result of the load of the pile
rig, the wood sheeting shifted and more than 5 feet of
heave occurred during the pile-driving operations. An
attempt, between August 27, 1962 and August 29, 1962
to repair the cofferdam failed. The cofferdam was re-
built of steel sheeting between February 25, 1963 and
March 25, 1963.
A21
Appendiz C, Decision of Court of Claims,
State of New York.
Cofferdam ML-13SB was constructed of AP-3 steel sheet-
ing between June 4, and June 11, 1962. Efforts to save
it, between June 11 and September 5, 1962 were unavail-
ing. It was dismantled and reconstructed of heavier ZP
a aera between December 14, 1962 and February
’
Cofferdam ML-14N and SB was constructed of AP-3
steel sheeting between July 24, 1962 and August 11, 1962.
When efforts to save it, between August 1, 1962 and Sep-
tember 5, 1962, failed, it was dismantled and reconstructed
bag steel sheeting between January 30, 1963 and April 2,
Cofferdam ML-27SB was constructed of wood sheeting
between July 3, 1962 and July 12, 1962. It was salvaged
November 16, 1962 after intermittent repairs, which were
nae because the sheeting had shifted under imposed
Cofferdam ML-22NB was constructed of wood sheeting
between August 16, 1962 and September 5, 1962 and par-
tially reconstructed of AP-3 steel sheeting between Sep-
tember 5, 1962 and October 25, 1962.
Cofferdam ML-23NB was constructed of wood sheeting
between August 13 and August 22, 1962. A portion of it
which failed was replaced by AP-3 steel sheeting between
November 19 and November 26, 1962. Cofferdam HD—
Pier 9 was constructed on September 14, 1962 of Z-type
sheeting of 40-foot lengths but was found to be inadequate.
Longer sheeting proved to be acceptable for this and for
the remaining cofferdams.
The Claimant defaulted in its plainly defined respon-
sibilities under the Contract Proposal and Public Works
Specifications in respect of the cofferdams. It failed to
start work on the cofferdams until approximately 7 months
had elapsed from the date of the signing of the Contract.
The cofferdam failures were responsible for the removal
A22
Appendix C, Decision of Court of Claims,
State of New York.
from tk job-site of two pile driving rigs. The conse-
quences of overall delay in pile driving, footing, column
and column cap concrete work and steel work construction
were an increase in overall cost. The Claimant having
fallen far behind in his Progress schedule, incurred the
increased expense of additional sheeting and bracing, hir-
ing additional personnel and providing additional sites for
the pile subcontractor, in attempting to meet the contract
completion deadline. The additional eost for the removal
and replacement of damaged sheeting for new sheeting and
for the excavation of heave resulted from the Claimant’s
erroneous choice of wood sheeting and AP-3 steel sheeting.
Had the Claimant used the Z-type sheeting of correct size
from the inception of the cofferdam construction, had they
done so timely instead of delaying 7 months, the chain of
costly misadventure would not have been forged.
The Claimant has not submitted any evidence of the
actual cost they might have incurred had they chosen to
use the correct size Z-type sheeting from the inception of
the cofferdam construction, or of the quantity of such
sheeting that might have been required. No evidence was
adduced of the amount of the difference, if any, between
such cost and the allowable maximum of $176,000 for cof-
ferdams. The temporary Z-type sheeting might have been
economically reused by the Claimant had the Claimant
made the choice in the first place. Their late use when the
Claimant was lagging badly precluded such reuse.
The Claimant’s Brief After Trial (Page 124) states:
“As to the cofferdams, the very fact of the gross dis-
parity between the State’s represented cost and the
actual cost incurred by Claimants demonstrates how
qualitatively different the scope of work required was
from the work contractually indicated. Quantum
meruit clearly applies without further discussion”.
A23
Appendix C, Decision of Court of Claims,
State of New York.
The Court rejects the argument that the size of the dis-
parity between the work contractually required and the
actual cost incurred demonstrates a qualitative difference.
The difference, far from demonstrating a qualitative dif-
ference, is, in the judgment of the Court, persuasive evi-
dence of the Claimant’s careless and wasteful performance
and conduct of the project. To find liability in the State
is to exculpate the Claimant and its subcontractors and to
reward them for their ineptitude.
“One who makes a contract cannot be certain that he
will be able to do the work for the amount of his bid.
The risk of failure falls on his shoulders. Equity
does not relieve from bargains merely because they
are unprofitable”. Weston vy. State, 262 N.Y. at P.51
Schedule E claims additional cost ($33,856.84) incurred
in the removal of mud waves. This Schedule is based
upon the allegation in the Claim (Paragraph 10) of express
representations, warranties and statements “. . . that fills
could be placed without disturbances to the existing river
bottom . . .”, and that the Claimart “. . . encountered
materially different soil conditions . . .” which required
“. . . the use of additional equipment, labor and materia!
. .” (Paragraph 11).
In response to the Demand for a Verified Bill of Particu-
lars to “set forth in haee verba each and every represen-
tation, warranty and statement concerning . . . (6) that
fills could be placed without listurbances to the existing
river bottom” The Claimant, in its Verified Bill of Particu-
lars, replied (Paragraph 3 Sub. 6): “Sheets 37, 38 and 44
of the Contract Drawings show that fill is to be placed in
and along the banks of the Flushing River with no warn-
ings as to mud waves, heaves or other disturbances being
noted”. While the indicated Contract Drawings indicate
Appendix C, Decision of “o4rt of Clans,
State of New York.
that fill is to be placed in and along the banks of the Pins.
ing River neither these or any other Contract Drawings
contain “warnings’’.
The absence of a “warning” cannot be deemed a repre
sentation, Warranty or statement, where the State bar
afforded the Contractor ample opportunity to cuatime the
State's records and the Contractor hae wet availed itectt
of the opportunity or where the Contract Docanents, ac
here, contain adequate admonitery language.
The Contract Proposai and Public Works Specifications
were sufficiently explicit for a Contractor of sinc, standing
and longtime expertise to have bees forewarned that the
rapid piacement of heavy etmhankenents, and the auc of
heavy tractors to tove the material, on a deep rubetratac:
of organic silt, would probably cause mid waves. The com
tractor could have chosen lighter construction equipimce!
and a thin blanket of fli and allowed » fait day for Shee
organic silt to regaig ite strength.
The Cla.mant began to place teasporary 40 ia the Flack.
ing River in June 19992 as 9 teame of facilitatiag the con.
struction of coflerdame. The tetparary alteration of the
bounds of the Pigshing Hives wae a epomeate of eomrensctuce
for such constriction ated the gud wares were 9 ctunotns tant
of the Claimant's Ulbechoren cometrwction tuethuende.
Schedule F clatmee additional cost (M4OSPOTS) aucwt ted
in the pumping of water, The Domead fur a VeriGed Bul
of Particulars (Paragraph 5) sought to have the Clgismet
.. state where ated thes the wales wae pragegien foe whink
claun os made...” The Vesified Bali of Martacniase i Pare
graph [Aj) states: :
“The water ae pumped free oariews ace ratione
tnasde for pucre aad degumage thewsghnest the ates of thie
contract between Neowerher, 1061 amd Jaaeary 14,
iad”,
AS
A ppemiia C, Deesssom of Court of Claims,
State of New York.
Ute ant one-half pages ipp. 14, 15) containing dates fol-
tow. Locetiogs are aenttted.
ln ome of ity Proposed Piedings of Fact (No. 334) the
(lasteae! slates:
“The State's ausdei verified that claimant incurred addi-
toomal conte ue the performance of pumping the water
prrer ta Jaswary 15, i968 in the amount (after over-
howd atl profit have bees added) of $9,463.46 (Ex-
bakes TP”.
The Agdit *Seleeddalc IF} sand:
.. . Reebotors have not bees able to estimate from the
ted eatitnate the coptemplate! pumping costs nor has
‘he clasteant’s repremeptative, Mr. Fimen, enlightened
awitece as to where sack coats were included in bid
< eS. ggtc.
Awditegs have therefore transferred actual audited
coete te “Ne Acdit Determination’ inasmuch as con-
tem phated cost could wet be worried by auditors”. (Em-
phaee acbcherd 5.
“* Waemeaet ded met eohent any equipment logs or ree-
otds te tetleet whee’ pumps were used on a daily or
weekly beece, Clarmaat did submit an inventory equip-
snows towwrd whack reflected equipment owned, and in
cottass umetgmees, the job location thereof. Some
‘Keyppopaccnt Traaeferred Reports’ were also submitted
who toflertedd the transfer of equipment from one job
to atether, However, from the reeards submitted,
amdstogs comhd versfy only that the oquipment (pumps)
cigztued ae om ned eq ptmert, as owned by the com-
pass. Aediters cusld wot verit y which pumps were
used gah when they weee used, wor could auditors
conte thet off the pamps claamed were on the job site
ted the peeved clamed as assed...” ( Ernphasis added)
.
a ee ,
A26
Appendiz C, Decision of Court of Claims,
State of New York.
The Claimant was forewarned by the Contract Proposal
of the presence of ground water (Page 30):
“The Contractor’s attention is directed to the necessity
of recognizing the elevation of ground water so that he
will progress his work with full knowledge of water
being present. Any cost involved in keeping the site
free from water shall be included in the price bid for
the appropriate items for the required work except as
otherwise noted”.
The Claimant was informed by the Public Works Speci-
fications (Page 207, Item 5, Trench, Culvert and Bridge Ex-
cavation) that the cost of dewatering was to be included in
the price bid for Item 5 and that he was obliged to “keep
the site of the work free from earth, water, snow and ice
during construction .. .” A similar instruction was re-
peated in respect of cofferdams with the added advice that
“onwatering equipment and any necessary bracing shall be
of adequate quality and capacity and shall be so arranged
as to permit their proper functioning in connection with the
cofferdams” (Page 369, Item 32S, Cofferdams). The
Claimant’s failure, in respect of cofferdams, was responsi-
ble in a good measure for the increased cost incurred in de-
watering, a failure which might have been avoided by the
use of Z-type steel sheeting of sufficient depth.
The dewatering of piers where no sheeting had been in-
stalled to stabilize the open excavation (ML-Piers-1N&S,
2N&S, 3N&S, 4N&S, 5N&S, 6S, 7S, ML-Abutment; Ramp
HB-Piers 2 & 7, Ramp HC-Piers 9, 10, 11, 12, 13 and 16)
should have been considered by the Claimant in calculating
its bid.
The Claimant’s drawing (#C-1, November 28, 1961,
“Plan of Construction work in Flushing River”) for the
control of the water level in Flushing River, was approved
A27
Appendiz C, Decision of Court of Claims,
State of New York.
by the World’s Fair Corporation (Permit M-20, December
18, 1961). The drawing provided for the installation of a
36” corrugated metal pipe at an invert elevation of —4.00
ft. in both upstream and downstream dams which were to
be constructed by the Claimant in the Flushing River.
Temporary haul roads were to be constructed over the dams
with an elevation of +2.0 ft.
The Claimant constructed earth and brick dikes but
omitted the pipes. The dikes failed, the project site was
flooded, and the resulting mud waves checked the water
flow downstream and caused it to back up. In June 1962,
the Claimant installed a 30’ corrugated metal pipe for the
diversion of the river. The lack of conirol of the Flushing
River level was a result of the Claimant’s failure to ad-
here to its own approved Drawing #C-1 of November 28,
1961. The failure accounted for the additional cost in-
curred under this Schedule. The flooding of the project site
occurred because the Claimant failed to install drainage
pipes under the earth dikes. The later installation of 30
corrugated metal pipes proved inadequate for the proper
flow of the river.
In November 1962 the Claimant installed a 48’ pipe. The
problem remained unsolved because the 48’ pipe had not
been placed at the proper elevation. On April 2, 1963 the
State advised the New York Department of Parks that the
water had been lowered to an acceptable level.
Schedule G claims additional cost ($179,951.34) was in-
curred in the removal of obstructions to the pile driving,
such as timber piles, concrete boulders, etc., which were not
indicated in the Contract Documents. The Demand for a
Verified Bill of Particulars required the Claimant to “give
the location and describe the obstructions which were re-
moved and the date of their removal . . .” (Paragraph 5).
The locations and approximate dates of removal are set
forth in the Verified Bill of Particulars (Pages 15-17).
A%8
Appendiz C, Decision of Court of Claims,
State of Neu York.
The Claimant states that the various obstructions which
it encountered were “contrary to the representation con-
tained in the Contract”. In what way or what representa-
tions is not stated. Nor does the Verified Bill of Particu-
lars state that these obstructions were 10 or more feet be-
low subgrade, a fact which would make the claim payable
as force account work.
The words of the Contract Proposal on the subject
follow:
“If any obstructions to pile driving are encountered,
ten (10) feet or less from the bottom of the footing,
the Contractor shall, if so ordered by the Engineer,
pull the partially driven pile or piles and remove the
obstruction, backfilling hole with approved suitable
material and thoroughly compacting backfill to the
satisfaction of the Engineer. However, no partially
driven pile shall be removed until the Engineer is sat-
isfied that the Contractor has made every effort to
drive the pile through the obstruction. Payment will
be made for excavation under Item 5S and for sheet-
ing under the appropriate item; no other extra pay-
ment will be made for this work”. (Page 30)
Other provisions of the Contract Documents are appli-
cable. Special Foundation Notes of the Contract Proposal
(Page 31) call attention “. . . to the fact that the infor-
mation obtained therefrom is not to be considered as a sub-
stitute for personal investigation and research by the Con-
tractor as required by Paragraph 3 of the Contract Agree-
ment”,
The Contract Proposal (Item 818, Page 123) provides
a linear foot formula of payment for demolition of existing
piles and cradle. It provides for payment of excavation
A29
Appendix C, Decision of Court of Claims,
State of New York.
under Item 5S, Trench, Culvert and Bridge excavation
within the limits indicated on the plans.
The Contract Proposal (Item 84TP, Page 172) pro-
vides a linear foot formula of payment for the Removal
of Tops of Existing Timber Piles. The quantity paid for
is the actual number of linear feet of pile removed or
demolished. The unit price bid covers the cost of furnish-
ing all labor, material and equipment to complete the
excavation and removal.
The Contract Proposal (Item 85 CO, Cast-in-Place Con-
crete Piles, Open-End, Page 128) states:
‘‘Wherever abandoned underground structures are
encountered 10 feet or less at the bottom of the pro-
posed pile caps the engineer may direct removal of
part or all such structures and backfilling with ap-
proved suitable material. The Contractor shall per-
form the work in accordance with such direction.
Excavation shall be performed and paid for under
Item 5S; furnishing and placing sheeting material for
back-fill under Item 2EF-B. No other payment will
be made for work incidental to encountering and re-
moving abandoned underground structures’’.
The Contract Proposal (Item 103D, Page 135) requires
the Contractor to remove existing drainage structures as
indicated on the plans and as directed by the engineer.
The Contractor is required to remove pilings in accordance
with the requirements for Item 84 TP (supra). Dis-
posal must be away from the site. Back-fill must be
performed with materials conforming to the requirements
of Item 2 EF-B on selected fill. The methods of payment
are precisely described under Contract Proposal Items
84 TP, 5S and 2EF-B.
Contract Drawings 53.60 and 199 of the Contract Plans
ea ee
A30
Appendiz C, Decision of Court of Claims,
State of New York.
indicate that the removal of potential obstructions, exist-
ing timber piles and concrete caps were a responsibility
of the Contractor and that their removal, within the pur-
ys of Item 851D, were included for payment under Item
The greater part of the claim under Schedule G seeks
$146,355.68 for the cost of excavation and removal of ob-
structions at ML-25 NB & HC-6. The Claimant subse-
quently reduced the amount to $122,729.46.
Payment by the State to the Claimant for removing ob-
structions was made under the following force accounts:
1) NewlItem904A (ML-25 NB & HC-6) $69,013.83
2) New Item 918 (ML-Pier 19) 936.64
3) New Item 924 (ML-Pier 18 SB) 7,995.19
Payment was made under Item 5S for the removal of
a 48 inch water-main at Piers HC-9, HC-10, HC-12 and
HC-13. (Page 1635, Final Estimate). The claim for addi-
tional payment for removing obstructions in 18 piers was
included under Item 5S.
Schedule H claims additional cost ($39,642.14) incurred
in the construction of additional pile cap forms (Para-
graph 12). The Demand for a Verified Bill of Particulars
requires that the claimant ‘‘give the location by station
or otherwise describe the additional pile cap forms which
were constructed’’, The Verified Bill of Particulars al-
leges that pile cap forms were required at 57 designated
pier locations. The need for such forms occurred because
the soil conditions encountered were allegedly different
from those which the Claimant stated had been repre-
sented in the contract. The Claimant alleges that it had
to do form work not contemplated originally thereby in-
curring increased cost in the construction of additional
pile cap forms.
A31
Appendiz C, Decision of Court of Claims,
State of New York.
The Claimant alleges that pile cap forms were required
at the designated pier locations ‘‘where it was originally
contemplated that sheeting would be driven on the neat
line of the footings thus eliminating the necessity for
forms’’. (Verified Bill of Particulars, Page 41).
The Claimant, in its Proposed Findings of Fact (No.
358), alleges that ‘‘these additional costs were incurred
by the Claimant because of misrepresentation, fraud and
active interferences of the State’’. No evidence was ad-
duced to support the Proposed Finding.
In its Proposed Findings of Fact (No. 359) the Claim-
ant states that ‘‘The State’s audit verified that claimant
incurred additional costs in the construction of additional
pile cap forms in the sum (after overhead and profit had
been added) of $37,114.10’.
An audit is not a determination of legal liability. The
State’s auditors, in their letter dated September 1, 1972,
transmitting the Audit to the Assistant Attorney General,
wrote:
‘*The audit was performed for the primary purpose
of determining whether the claimant’s records and
supporting data substantiated the amount scheduled
in the claim. It is not within the scope,of our audit
to make any judgment concerning (1) the legality
of the entire claim or any portion thereof, and (2) the
engineering aspects of claim’’. (Emphasis added)
(Exhibit T).
Schedule I of the claim, brought by the claimant in
behalf of its subcontractor, Bar Steel Construction Cor-
poration, seeks the amount of the increased costs ($109,-
046.88) of placing steel for piles, caps, footings and col-
umns to April 9, 1963.
‘*. . . because, inter alia, of non-sequentiai, inter-
rupted and piece-meal work as a result of the founda-
aay aa
A32
Appendiz C, Decision of Court of Claims,
State of New York.
tion conditions; performance of work under more
difficult field conditions, including winter weather;
performance of certain work, including cutting and
welding in the field, which would have been performed
more efficiently in the shop’’. (Verified Bill of Par-
ticulars, Page 17).
Bar Steel Construction Corporation entered into a sub-
contract with the Claimant on November 7, 1961 requiring
the contractor to furnish a quantity of bar reinforcements
for structures For Trucks Job-site “at no cost to the
subcontractor’; to furnish a crane as required at no
cost to the subcontractor except that the subcontractor
would pay the crew. The subcontractor was required to
furnish the necessary tie-wire and all other accessories.
The contract provided that the subcontractor be paid in
full by the contractor ninety (90) days after completion
and acceptance of subcontractor’s work by the owner.
Of the amount in Schedule I of the claim the State’s
auditors found $103,877.08 “not subject to audit determina-
tion’’ and $5,169.80 “not includible in claim”. The reasons
for their findings are stated in the Auditor’s Report (Ex-
hibit T, Schedule 1-1).
Bar Steel Construction Corporation failed to offer in
evidence its estimator’s bid work-up (Transcript, Vol.
XXI, Page 35). Its schedule of additional cost was pre-
pared for this claim (Transcript, Vol. XXI, Page 36) but
it submitted no claim to Johnson, Drake & Piper. The
President of Bar Steel Construction Corporation, Cedric
Janien, was asked whether he had billed the amount shown
on that schedule to Johnson, Drake & Piper and he replied:
“No we didn’t”. (Transcript, Vol. XXI, Page 37).
The subsurface conditions at the site were not different
from the conditions described in the Special Foundation
A33
Appendiz C, Decision of Court of Claims,
State of New York.
Notes of the Contract Proposal to which the Court has
already referred. The design decision to support all foot-
ings on piles was based on such subsurface conditions.
The State is not liable to the contractor-claimant under
Schedule I, nor to the subcontractor. The subcontractor,
if it has incurred any losses under the contract of Novem-
ber 7, 1961, would have to seek recourse against the Con-
tractor.
The Second Cause of Action, Schedule J seeks to recover
additional costs ($1,486,783.62) incurred in:
“ _ . the failure on the part of the State to approve
timely the cast-in-place pile subeontractor, the failure
on the part of the State to coordinate the work prop-
erly, the failure on the part of the State to provide
access to the site of the work to Johnson, the failure
of the State to fulfill other obligations on its part to be
fulfilled, and because of the performance of extra
work, Johnson became entitled to appropriate exten-
sions of time in the completion of the Contract” (Para-
graph 14, Notice of Claim).
The Demand for a Verified Pull of Particulars required
the claimant to set forth the facts underlying these conclu-
sory allegations.
The Contract was entered into October 31, 1961. The
first pile rig arrived on jobsite January 30, 1962 and the
first pile was driven February 13, 1962 by Raymond Inter-
national, Inc., pending the approval of their pipe-step
taper pile (ED-410) and other piles and equipment. Ray-
mond expected that the piles and hammers which it in-
tended to use on this jobsite would likely meet with the
State’s approval inasmuch as similar instruments had been
aproved by the State on January 5, 1962 for Contract
FAVWE 61-4.
A34
Appendiz C, Decision of Court of Claims,
State of New York.
The allegation that the State failed to coordinate the
work properly and to provide for the claimart’s access to
the site attributes responsibility to the State for a situation
completely controlled by and the responsibility of others,
by the terms of the Contract Proposal. From February
1963 to the date of completion of claimant’s work, the men,
materials and equipment of numerous other contractors of
the World’s Fair Corporation converged on the jobsite.
The contractors, including the claimant, failed to coordi-
nate their activities thus obstructing, delaying and inter-
fering with the claimant’s work. The Claimant, in turn,
obstructed, delayed and interfered with other contractors.
Responsibility and liability are attributable to these con-
tractors and no liability adheres to the State. (Contract
Proposal, Pages 34-40, 110-122).
The Claimant alleges (Verified Bill of Particulars, 6C,
Pages 47-49) that the State unreasonably delayed from
December, 1961 to January, 1962 in submitting timber pile
order lists to it after the timber test piles had been driven.
The approval of H. Johnson as subcontractor was given
promptly on December 5, 1961 and two timber test piles
were immediately driven. The remaining 13 timber test
piles were driven between December 6, 1961 and December
29, 1961. The estimated quantity of 1,000 linear feet was
overrun by 35 feet.
On December 14, 1961 the State approved the use of 50
foot lengths of timber piles for various structures (114,
119, 120 through 124A). On January 2, 1962 subcontractor
Johnson began driving piles from M.H. 122A toward M.H.
120; and continued pile driving on January 3-5, 8-12, 16-19,
22, 1962. The contractor left the jobsite on January 23,
1962 because of a delay in the delivery of piles, but re-
turned and resumed pile driving on February 2, 1962.
On January 23, 1962 the Claimant was given a list of 13
add'tional test piles which were driven between February
am
! | -
s
- .
:
A35
Appendix C, Decision of Court of Claims,
State of New York.
12, 1962 and February 28, 1962. On February 23, 1962 and
again on February 28, 1962 TAMS gave the Claimant
order lists for all piles except a group represented by test
pile CB-146.
The Public Works Specifications (Pages 374, 375) pro-
vide for ordering of additional test piles and for the au-
thority of the Deputy Chief Engineer to change the loca-
tions, numbers, lengths and methods of driving test piles
at any time during the progress of the work. The sub-
contractor continued timber pile driving between February
2, 1962 and March 28, 1962, and, after unloading 85-foot
piles on March 29-30, 1962, left the jobsite to return on
April 29, 1962 to resume driving the 85-foot piles. The
svbeontractor again discontinued pile driving, between
May 8-28, 1962 and again from June &, 1962 to October 9,
1962.
The suspension of pile driving during the latter four-
month period occurred despite the stockpile availability
of 500 timber piles of 80 foot length and the availability
on order of 300 more, as well as shorter piles which could
have been obtained on notice. Because of insufficient
sheeting from the drainage pier work, the claimant ordered
a stoppage of pile driving on the drainage work to favor
its pier work.
The Claimant’s allegations (Verified Bill of Particulars,
Page 48) that the State unreasonably delayed providing
engineer lay-outs to the claimant, and that the State de-
laved unreasonably in checking the claimant’s lay-outs after
the latter began preparing them, are unsupported by proof.
The Claimant, after destroying restaking piles, failed to
comply with the requirements of the Contract Proposal
(Page 25, Stake-out Survey) that the Contractor “. . . must
provide his own men and instruments ‘or actually reestab-
lishing such marks if they had been destroyed due to his
Appendiz C, Decision of Court of Claims,
State of New York.
operations or any other causes, subject to the check and
correction of the Engineer”.
To expedite the work TAMS provided the lay-out, the
Claimant having failed to comply with the Contract Pro-
posal. On January 15, 1962 the claimant wrote to TAMS
requesting a stake-out of various piers. On February 2,
1962, the State informed the Claimant that it was trans-
ferring the responsibility for the stake-out from TAMS to
the Claimant in accordance with the obligation imposed on
the claimant by the Contract Proposal.
The Claimant's allegation (Verified Bill of Particulars,
Page 48) that “Throughout the job the State was unreason-
ably slow in responding to requests by JDP and in supply-
ing necessary clarification, approvals, information, etc.” is
general to the edge of vagueness and without any visible
support in the record.
The Claimant’s further allegation (Verified Bill of Par-
ticulars, Page 48) that “Throughout the job, State arbi-
trarily and unreasonably required JDP to overdrive its
pile to a bearing capacity beyond that specified in the Con-
tract” (6) should be considered in the light of Public Works
Specifications.
“When required, the lengths and number of the piles
will be determined by actual loading of the tests, which
will be paid for under the Item Load Tests for Piles.
“All piles shall be driven to the elevation shown on the
plans or to the resistance ordered by the Deputy Chief
Engineer (Bridges) at the time of Driving”. (Page
378, sub-paragraph h).
Pile-driving began on February 13, 1962 with a pipe-step
tapered pile to a depth of 106 feet in Pier HC-1. The sub-
contractor continued driving piles at HC-1 on February 14,
and 15, 1962. On February 16, 1962, it drove four piles in
A37
Appendix C, Decision of Court of Claims,
State of New York.
Pier HC-2. These piles were driven an average of 140 feet
without obtaining the required blow count, a figure in ex-
cess of the State’s estimate of 75 feet. Piles were driven
at Piers HC-3, HD-5, HD-6, before April 2, 1962 when the
Claimant complained of delay in receiving permission to
concrete piles and footings. The pouring of piles at these
piers took place between March 28 and May 2, 1962 and
the concreting of the footings on May 8 and 9, 1962.
The so-called Engineering News Record Formula of
measuring driving resistance by blows per foot and of de-
termining the allowable load capacity was regarded as un-
reliable by TAMS. Although the Public Works Specifica-
tions (Item 88P) makes provision for load tests for piles,
the manner of loading a test pile must be as shown or in-
dicated on the plans or as ordered by the Engineer. Neither
the Contract Proposal nor any order of the District Engi-
neer dealt with the subject.
As late as July 25, 1962, the District Engineer, in a letter
to TAMS, stated the standard for the installation of cast-
in-place concrete piles.
“The required driving resistance shall be 150% of that
computed from the Engineering News Record formula
utilizing the 35 ton pile bearing requirement, and the
driving energy of the Raymond single acting, heavy
ram 1S hammer which was approved for this work. The
open end piles under Item 85CO shall be driven to that
penetration that will develop the required resistance.
The minimum penetration for these piles however,
shall be 10 feet below the invert of the existing 12’-
6’x8’-0’ Storm Sewer”.
On August 14, 1962 according to the Resident Engineer,
a 221 foot pile was driven in the HA-Abutment. On August
15, 1962 TAMS studied the feasibility of “freezing” piles at
AMS
A ppemdia ©. Drewisnem of Camtt of Chem.
State wt Now Tock,
Se stmnpe Cente S20 3G Senet depths, wand am ea queriament tse
racue tay (fe allomume the giles te teammate gmdustmetved «ree,
St) prone emewemetal Oke Meptieulies 1, INET the Des.
pegernor aEET OCS the “Creeping” anctind Fae Soya
Marek 25, 106, slates “vied
Tike State cetiausterd ZMH Limeme feet of emetiiee
poles, (Comteges Mrepmeml, Mage 3, teen Km"). The Chain
aos wee pad toe SETS F Gaese feet (Tranacsigs, Ver. ¥,
Page 153); Mine Mesemmte, Steet Fy,
Tie (Taveumat ailiegice kat “thie Mate attiitagds aad oe.
Commmmmbly gefaned te perens SIP te conwretc amy puller
Set BR pilleubsinamy withie BOK Feet bind tere cwmnplieted”
(Veretied Mul of Mastiontase, Mage &4).
| Tike CDacaeimant’s Pawjient Ringigeies viaad tue mensiid hep Sue
Sqiwwmtemetiog wmedicns Mie utvegubagity aart etheds whack
Sohn pord the Claraunat, Pevimiegham Se cemuegetc weetais
fotee wete demued the nemttmetioe Bewmase the sthentices
seghs kane peered Saanaging te sgsvermding aenettwmetoon
Thelig ne a wiexmetictc Medic ark due je amp grie dovr ume reeteuc.
Soo Se FARMS bat seetited petaeesilp Seems & tack of cm,
oototatiom Metmeenk She Cleat gad Ge Sik ateacter.
Mivetie med coe “adwicie phievic price, atsea hupoutms Gree clesaes,
waters ome mad Swe wictelie Gtetietie thie Malnecmtegetee’s roe
Coes Cle gk adored Se penmedigs the wemesetc. The Hess.
Seat Regence, em Deady 84, Si, emaeplintmed te the Chains
ants Pawjewt Magiaees od :
““. 9 = @ Seta Sere Segiie af Between cue week amd
iO dene betege Bapauend cometetcr The piles after thes
ate davven, acd Thetetege, semne poses ate sat civcrther
suphased cy Thee Teen’.
ee ee
PPLE VS hp MII ONES te EK
AIS
A ppomdes C, Decisson of Court of Claims,
State of New York.
The Selesstractor had so less than five other jobs in
the sntee aren at this time. (Transcript, Vol. XIII, Pages
S, 9.
The Claitwars alleges (Second Cause of Action Par. 14)
the gorforsanee of extra work. It alleges further that
ite porivyesence of work called for by the Contractor was
detested, imterfered with and made more difficult; that
Pe atest of work which it had to perform was increased
thereby optitiing i to corresponding time extensions.
(Vers®ead Mill of Particulars, Page 49, subparagraph 6
id}.
The “extra work’’ oxnsists of ao listing of 43 instances
(Verified Bill of Particulars, Page 49 through 52, Ex-
hebets G, L. & M of the Verified Bill of Particulars). This
allegatian comprehends every aspect of the claim for work
whee wae required by the contractor done to correct im-
proper werk dene or done with little or no delay or done
withewt additional time, or which was not the subject of
ay record or directive. Twelve additional instances of
tetxs of changed or extra work which allegedly hindered,
interfered with or increased the work done are
felty explained and negative any suggestion of the State’s
ability (Exhibit ¥, Pages [1-48 to I-64).
15 of the Second Cause of Action alleges
that, despite the Claimant's entitlement to time extensions,
whieh were refused or not granted, the State directed the
Cinitesnt to accelerate its performance to meet the original
date or the subsequently extended completion
dates amd that such extensions were in@dequate and not
properly granted.
The Verified Bill of Particulars (Pages 54 through 57)
repeats the allegation in general terms that: ‘JDP was
delavect, interfered with and hindered in the performance
of ite work and was required to do extra and additional
A40
Appendiz C, Decision of Court of Claims,
State of New York.
work’’, It refers to Paragraphs 3 to 6 and 12 for a full
description of the actions and alleges that it protested, but
that the State failed and refused to grant an extension of
the completion date. Instead it allegedly ordered the
claimant to accelerate its performance to complete the
work by the specified contract date.
Informal written requests for time extensions and re-
imbursements appeared in letters, dealing with other sub-
jects, from the Claimant to TAMS dated January 23,
1962. The first formal request, Notice of Application
for Extension of Time, dated October 29, 1963, submitted
by the Claimant to the District Engineer, sought an exten-
sion of time from the original contract completion date,
October 31, 1963, to December 31, 1963. The Notice of
Application for an Extension of Time was filed two days
before the scheduled completion date, although Article 4,
Page 23, of the Public Works Specifications provides:
‘Notice of Application for such extension shall be
filed with the District Engineer of the district within
which the highway under construction is located at
least 15 days prior to the date of completion fixed
by the terms of the agreement’. (Interlineation
added).
The record abounds in evidence that the Claimant lagged
behind the Progress Schedule throughoui the contract term.
The District Engineer noted on March 20, 1962 that the
Claimant had accounted for earned money of 3% of the
contract instead of 13% as required by the Schedule. On
June 26, 1962 the Claimant was 3 months behind. It was
so informed and was asked to increase the size of its
working force to complete the contract on the date
scheduled.
The District Engineer on November 8, 1962, informed
the Claimant that it was lagging behind its latest Progress
A41
Appendix C, Decision of Court of Claims,
State of New York.
Schedule. It was urged to ‘‘. . . initiate the necessary
steps to increase your present rate of progress’’ to mcet
the contract completion date.
On December 31, 1962, the Resident Engineer informed
the Claimant’s office Engineer that the project was 41%
complete and the Progress Schedule required 62% com-
pletion. On January 11, 1963 the Resident Engineer in-
formed the Claimant that it was more than 2 months
behind Schedule. On June 13, 1963 the Superintendent
of Public Works sent a wire to the Claimant informing
it that 77% of contract time had elapsed and the work
called for in the approved Progress Schedule had been
only 63% completed, i.e. 3 months behind time Claimant’s
January 29, 1963 Progress Schedule. The wire contained
the following:
‘‘T hereby direct you to increase your working hours
or take other measures as necessary immediately to
put your job on schedule’’.
On August 8, 1963, the TAMS Project Engineer advised
the Claimant to increase its rate of placement of deck
concrete. At this date, the Claimant was % months be-
hind its Progress Schedule.
Pursuant to the Contract Proposal (Page 36, Progress
_ of Work) the Claimant bore responsibility for submitting
a completed Schedule of operations and of re-submitting
it, if necessary, for the approval of the Engineer. The
Contract Proposal states:
‘‘The Contractor will be required to place sufficient
equipment, labor efforts on the work within ten days
after the award of the contract so that the work may
be progressed in accordance with the approved
schedule’’.
ob
A42
Appendiz C, Decision of Court of Claims,
State of New York.
The State’s efforts to secure the Claimant’s compliance
with the Schedule of Progress and to assure the timely
completion of the Contract have been extensively char-
acterized by the Claimant as acceleration. The Claimant’s
Proposed Findings of Fact (No. 430):
“The acceleration directed by the State was without
basis in its contract with claimant (Ex. 380)”
is notable for two reasons. First, Exhibit 380, no matter
how viewed, offers no support for the Proposed Finding.
Second, the Contract, which has a stated date of completion,
is deemd to offer no basis for one of its parties, the State,
to urge the other party, the Claimant, to abide by the
Schedule and make very effort for a timely completion. The
Claimant, in effect, seeks to have the State held liable for
its efforts to have the Claimant live up to its contractual
obligation. This Court will not assist the Claimant in the
attempt.
The total amount sought by the Claimant for his Second
Cause of Action is the additional cost allegedly incurred in
accelerating the performance of the work is $1,486,783.62.
Of the sixteen items comprising the total amount only Item
10 is one for which the Court finds the State liable. The
Claimant incurred the additional cost of siliconing concrete
deck work in the sum of $3,232.81, a sum which included the
general Contractor’s 5% markup on the subcontractor’s cost
and remained unpaid. The silicone was added at the State’s
instructions and was not included in the original contract
(Exhibit 401; Transcript, Vol. XVII, Pages 26-28).
The Third Cause of Action alleges increased cost
($455,008.62) incurred by the Claimant:
“. .. because of the failure of the State, its agents,
servants and/or employees to coordinate and progress
the work in the area of the site in which Johnson was
A438
Appendiz C, Decision of Court of Claims,
State of New York.
to perform its Contract and the work embraced therein
and because of directives by the State to perform cer-
tain extra work, Johnson was caused to perform its
Contract and work embraced therein }1 a manner not
contemplated and intended by the Contract at the time
of bid.” (Notice of Claim, Par. 20).
It alleges further that it was compelled, under protest
and solely because of the State’s failure:
“ .. to perform its work for an extended period, Le.
from October 30, 1963 to July 16, 1964, thereby being
required to incur additional and increased cost and ex-
pense for material, labor and services . . .” (Notice of
Claim, Par. 21).
The Third Cause of Action is based entirely upon the con-
ditions and allegations already set forth in the First and
Second Causes of Action with both of which the Court has
already dealt. The Claimant seeks to burden the State with
the responsibility for delay in completing the contract from
its scheduled date, October 30, 1963, to its extended date,
July 16, 1964, and to recover the
“ . . inereased cost of performing the work after the
said date which cost were over and above what the cost
would have been had contractor been permitted to per-
form the work as contemplated and intended by the
contract the time of bid”.
In its Statement of Claim (Verified Bill of Particulars,
Exhibit B, Pages 26, 27) the Claimant seeks $299,048.03
“for the extended period of overhead, general equipment
rental and administrative costs” (Part A). It claims
$97,973.17 “. . . ineurred increased cost in pumping water
after the date upon which it would have been completed, i.e.
A44
Appendiz C, Decision of Court of Ciaims,
State of New York.
January 14, 1963”. (Part B). It claims $19,770.33 for the
alleged cost in placement of reinforcing steel after August
1, 1963. (Part C). It claims $38,273.09 for the alleged in-
creased cost incurred by its Subcontractor, Jandous Elec-
trical Company, a sum consisting entirely of charges for
supervisory personnel and equipment but containing no
charges for electricians or other labor. (Part D).
The greater part of alleged damages in the Third Cause
of Action (Part A) is attributed by the Claimant to the in-
terferences at the jobsite of other contractors, particularly
Tufano Construction Corporation. (Proposed Findings of
Fact, Nos. 478 through 482). The Contract Proposal (Page
35) defines the responsibility of the Claimant and the obli-
gation of the State in such situations, as follows:
“In case of interference between the operations of dif-
ferent contractors, the Engineer will be the sole judge
of the rights of each contractor and of the sequence of
work necessary to expedite the completion of the en-
tire project, and in all cases his decision shall be ac-
cepted as final. The Contractor agrees that he has
included in his unit prices bid for the various items of
the Contract the additional cost of deing the work
under this Contract because of the fact that he does not
have a clear site for the wo.k and because of inter-
ference of roadway use, other contractors and neces-
sary utility work and because of any other limitations
herein specified.”
. . .
“Delays in the availability of any part of the site or
any delays due to interference between the several
contractors, or by utility companies, shall be compen-
sated for by the Superintendent of Public Works solely
through granting an extension of time in which to com-
plete the work of the Contract. The Contractor shall
A45
Appendiz C, Decision of Court of Claims,
State of New York.
have no other claim against the State of New York for
any damages due to such delays or interference, other
than extended time in which to complete the work”.
The Scheduled completion of pumping (Part B) by Janu-
ary 14, 1963 was rendered impossible by the Claimant’s use
of inadequate lengths and insufficient strength of sheeting
which it employed. The responsibility for failure to per-
form the work properly rests with the Claimant and not
with the State.
The Scheduled completion by August 1, 1963 of the work
of subcontractor Bar Steel Construction Corporation was
delayed to December, 1963 (Part C). The claim for the
placement of reinforcing steel after August 1, 1963, an item
that was bid and paid for, has no relevancy in point of time
as charged by the Claimant. The cause of the deiay was
revealed by the President of the Bar Steel Construction
Corporation, Cedric Janien, in cross-examination:
‘‘Q. But you couldn’t do your work, could you sir,
until the cofferdams were built where they were neces-
sary and until the pile driving was done, is that cor-
rect?
A. That’s correct.
Q. If there was a cofferdam failure you could not get
access to that area, could you?
The Witness: No, we couldn’t work efficiently.
If there was a failure we had to hang around.’’
(Transcript, Vol. XXI, Pages 31, 32).
If extra work was performed the subcontractor was re-
quired by Article 14 of its Agreement with the Claimant
to bill the Claimant for it. It failed to bill the Claimant for
extra work or for additional costs. The schedule for ad-
A46
Appendix C, Decision of Court of Claims,
State of New York.
ditional costs, from August to December 1963, was prepared
for claim purposes of the Claimant (ibid, Pages 26 through
37). The responsibility, if any, for additional costs in-
curred is a matter to be determined between the Claimant
and its subcontractor.
The claim (Part D) for $38,277.09 for increased costs be-
cause of delays to subcontractor Jandous Electric Con-
struction Corporation fails to indicate any reason for hold-
ing the State liable. Vice President Feinsilber of Jandous,
under cross-examination, stated that his company had no
bid work-up for the project (Transcript Vol. XVIII, Page
17); that the extra work beyond what was called for in the
contract had been paid for (ibid, Page 22); and that he
was not making any claim for idle equipment (ibid, Page
24).
The Fourth Cause of Action, consisting of miscellaneous
claims, seeks to recover $89,230.84, the additional and in-
creased cost and expense allegedly incurred, under protest,
in having been ordered by the State to perform certain
extra and/or additional work beyond that required by the
Contract. The allegedly extra and/or additional work is
set forth in the Statement of Claim (Verified Bill of Par-
ticulars, Exhibit B, Pages 30 through 39, Schedule O, Notice
of Claims) in 16 paragraphs. The Court’s findings in
respect of each is stated:
1) The Claimant seeks $33,307.52 for the installation
of permanent steel sheeting in the construction of the
drainage run 20-21-22 at Rodman Street. The Claimant
had the obligation of removing and salvaging the sheeting,
under Item 83X, after having beén advised that he would
not be paid for permanent sheeting.
2) The Claimant seeks $6,689.62 for the excavation of
earth materials from the Flushing River South of the haul
A47
Appendiz C, Decision of Court of Claims,
State of New York.
road in the vicinity of Pier HD-9. The restoration of the
river to its original condition was an obligation of the
Claimant under Item 82S of the Contract Proposal (Page
124), and of the Publie Works Specifications (Page 43).
The Claimant seeks $2,619.74 for new coping allegedly
required for the alteration of existing walls at Piers HB-2
and HC-16. The Superintendent of Public Works properly
denied this claim in his letter to the Claimant dated July
23, 1964 on the ground that ‘‘the minor changes in the stone
coping required for restoration are apparent from the
plans and specifications’’.
4) The Claimant seeks $412.12 for the State’s alleged
failure to afford it a proper site in Park Service Road A
in the vicinity of Piers HD-5 and HC-2 which necessitated
the concreting of the pavement of the partially constructed
roadway before covering it with asphaltic concrete paving.
The need for concreting resulted from the operations of
another contractor, Tufano Contracting Corporation. If
the Claimant has sustained damages it should proceed
against Tufano and not against the State.
5) In response to the claim for $910.30 for the taking
of concrete cores in the footings of Piers HA-2 and ML-37
and 39 and in the pavement of North Collector Distributor
Road, the District Engineer in his letter of April 28, 1969
correctly replied that . . . ‘‘the contractor violated con-
tract specifications . . . was advised of such violations and
requested to provide proof as to the strength accept-
ability . . . the cost of all such cores or other methods of
proof that the Contractor selects shall be borne by the
Contractor with no contribution whatsoever by the State
of New York’’. The Claimant was paid $300 for the taking
of test cores at ML-37N and 39S under new Item 925. It
is not entitled to further payment.
A48
Appendiz C, Decision of Court of Claims,
State of New York.
6) The claim for $438.56 for extra work in connection
with the fabrication of Item 202-8 galvanized W.I. pipe was
co.rectly disallowed by the Superintendent of Public Works
because the Claimant had:
‘‘Apparently failed to follow the revisions and cor-
rections shown on the shop drawings and did not head
the ‘Approved as Noted’ statement thereon. Note ‘A’
clearly stated that all dimensions and correction de-
tails ‘shall be verified in the field before fabrication’.
‘‘Tt is also noted that additional costs incurred were
undoubtedly the direct result of failure to clearly and
accurately observe, define and fabricate the bridge
drainage facility that could be installed at the location
required by the contract plans.’’
7) A claim in the sum of $263 for inspecting and clean-
ing an existing 18” sanitary sewer line under the Flushing
River was correctly disallowed by the Superintendent of
Publie Works in a letter to the Claimant dated July 13, 1964
because rectification of the damage that the contractor
itself had caused cannot be considered extra work within
the purview of the Public Works Specifications.
8) The claim for $5,455 deriving from an alleged order
of the State requiring the contractor to place additional
concrete was properly disallowed by the District Engineer
in a letter to the contractor dated October 23, 1964. The
structural steel stringers over which the concrete was
placed had excessive camber and would ordinarily have
been rejected. Due to the pressure of a World’s Fair dead-
line the District Engineer accepted the stringers thereby
necessitating a finished concrete slab thickness 8” less than
required in the contract.
A49
Appendiz C, Decision of Court of Claims,
State of New York.
9) The ciaim in the sum of $1,365.58 for the alleged addi-
tional cost of opening the viaduct on December 30, 1963
was properly disallowed by the Superintendent of Public
Works in his letter to the contractor dated June 30, 1964.
The Contract Proposal (Page 118, Paragraph i) provides:
‘*‘When directed by the District Engineer the contrac-
tor shall open to traffic any portions of new pavement
or structures before final acceptance of a contract.”
The same ‘‘shall be paid for at the lamp sum price bid for
this item’’.
10) The claim for $219.87 for the eaulking under the mall
barrier posts on the Main Line Viaduct was correctly dis-
allowed as contract work covered by the Contract Proposal
and the Public Works Specifications.
11) The Claimant seeks $2,201.42 for the construction of
field inlet 102A and catch basin 102B ordered by the Dis-
trict Office. The Superintendent of Public Works in a
letter to the Contractor, dated May 13, 1964 correctly dis-
allowed the Claimant for the following reason:
‘*We find the work ordered by the District Office was
completely similar to other drainage work on the con-
tract plans and within the intent, scope and require-
ment of the contract which provides proper and
adequate drainage facilities within the project site.
The additional drainage work is not found excessive
in quantity and was ordered when your forces were
working on the site. The order was reasonable and
necessary and in accordance with the spirit and intent
of the Contract and its specifications.’’
12) The Claimant seeks $1,468.48 for having repaired
leaks in the 20” force main. The Superintendent of Public
A50
Appendiz C, Decision of Court of Claims,
State of New York.
Works in a letter to the Claimant July 10, 1964 correctly
disallowed the claim because the leaks which developed
were the direct result >f the Claimant’s construction opera-
tions, such as pile « ‘iving and other heavy construction
activities, performed directly above and adjacent to the
sanitary line. The responsibility and cost for repairing
this damaged line was the contractor’s.
13) The Claimant seeks $859.71 for corrective work on
sign support bases L-3, and L-12. The Superintendent of
Public Works properly disallowed any liability of the State
for this work in a letter to the Claimant dated August 27,
1964 which read, in part, as follows:
‘*We have reviewed your letter and the appropriate
contract documents and find that a construction error
produced in the expansion joint of the VanWyck Ex-
pressway viaduct at sign base supports L-3 and L-12
was so produced by you and is a clear violation and
contradiction of the subject contract plan requirements.
‘*All remedial work is to be performed by you at nu
cost to the State.’’
14) This claim is in the sum of $9,894.72 for the purchase
of additional reinforcements alleged to have been required
by the ‘‘redesign of the concrete structure on the HE Ramp
east and west side . . .’’ (Paragraph 23, Notice of Claim).
The Demand for a Verified Bill of Particulars (Paragraph
12, Pages 6, 7) required the Claimant to set forth in detail
the facts underlying this pirt of the claim. The Verified
Bill of Particulars (Paragraph 12 (0), Page 84) stated
that:
‘*Contracts Drawings 204, 205, 206 and 207, which
relate to the HE Ramp, were revised by the State
A51
Appendiz C, Decision of Court of Claims,
State of New York.
primarily to provide for a continuous pile cap support.
This revision, araong other things, required that the
concrete forms had to remain in place, that reinforcing
steel which had already been fabricated and delivered
had to be revised, and that backfilling and overall
construction methods were complicated and made more
expensive and time consuming.”’
The record bears out this portion of the claim. The
claimant, in its Proposed Findings of Fact (Nos. 554
through 557) reduced the claim to $8,311.26, to reflect the
audit figure after deducting the disallowed sums.
15) A claim in the sum of $21,560.26 for the increased
cost of timber pile cut-offs (Paragraph 23, Notice of Claim)
is described in detail in the Verified Bill of Particulars
(Paragraph 12 (p), Page 84), which states that:
‘‘JDP incurred increased costs in cutting, removing
and disposing of these increased lengths.’’
The claim was properly disallowed because of a provi-
sion of Public Works Specifications:
‘‘m. Measurement and Payment. . . . The unit price
bid per linear foot shall include the cost of furnishing
all labor, materials end equipment necessary to com-
plete the work. . .
‘‘Piles that are delivered at the site of the work in
accordance with the itemized list furnished the Con-
tractor by the Engineer, and that for any reason are
not used in the work shall be the Contractor’s property
if he so elects. In event that the Contractor does not
desire to retain these piles for his own use, the De-
partment will purchase the same at the cost of the
piles delivered at the site of the work.’’ (Page 379).
AS?
Logie © Denon oF Cannt oF t titans.
Sake 08 Mew F veh.
36) A cligctie om Sue srmte of $3,564.10 appenty ta the No
Tate of Clee (Pavagenpi 22, Siedule Oy, The Verpfied
Had wf Pyatneminne (42 (cq). Page $4) states :
“SOP wae Geceted a: an Mem of exten werk (Itecw
WOT! Se pevtodte sniiemtting of the comegele paretnest
ete he <pietang ousemient af Lame Pelged Bagecsowas.”’
The CRedeemat ohatee Sheet ch tame send cmete of 916,085.99,
hegs senienserg ee tthe ste of G14476. 79, aad seek
Se semmmied Se Bevenwe This terme aeeemat Werk Hem
WUE msie tretetperinlly cemapietied on Pehrmmey 14, 1S6% aed
Hasnlliy cminphictid we Sganmey 1, IGE The Clarenamt fqileel
te seas owpieeiy sewception$ Selle aad the dieeropemcios
‘heat apeprepesiers wen Sheene Shalt mete enptemsttierd wartassierd the
scdeuctaon, of Shae clams So $2, 00K, the gtncmst conticnyd
Soy Sie Readme “s Be pines.
Tbe FR Ces of Dita sMhoges that:
“The priegieste? Fined Agrertzent sed Finat Pets.
cra e hieticnt wae gemdic Lalsely, cegumeousiy, arhs.
tone, weenie. a. bed Saath, om celntion of the
Sedmme acud gtr cetere of Sie Clenteaet and sesseonetruc
ae Shevest ax Skat, stem ether Shinge, 1 oortifiod
Led ginrwaient She qumetituer of gimognts et forth usder
She <tefue breiew depagmpted “Gaastety of Ansount
augers ty eetied metegd «af ceetifying the true
oud cegieeh qeaiices peepesizy eommpated . *' (No-
‘are ad KTae, Taeageagis 26).
The Dewan tee a Vested Mail at Particulars sought to
tire ive C Tdi
wet Seeth She arte sardettyiag the conclusory
aitiegetien Shei the goeepected Pinal Agresment anil
Feel Metieaa*e wae acade falecty, etrancausly, arbi
A53
Appendiz C, Decision of Court of Claims,
State of New York.
trarily, wrongfully, in bad faith, in violation of the
terms and provisions of the contract and in miscon-
struction thereof, including, but not limited to, setting
forth in haee verba the terms and the provisions of the
contract which were violated and the terms and provi-
sions of the contract which were misconstrued . . .’’
(Demand 14a)
The Verified Bill of Particulars fails entirely to respond
to the Demands of Paragraph 14.
The Fifth Cause of Action sets forth eight separate
claims for which the Claimant seeks additional compensa-
tion of $79,101.43. In its Proposed Findings of Facts (No.
570) the Claimant has reduced its total claim to $78,801.43.
The State's Auditor’s Report (Exhibit T, Page 162) states
that:
‘“‘No data was submitted by claimant, therefore,
auditors have placed the amount of claim as un-
audited.’’
The Court’s findings in respect of the eight claims fol-
low :
1) The Claimant’s allegation that it is entitled to pay-
ment in the sum of $14,668.00 for specified quantities of
Items 258 and 25SU is without merit. The State properly
denied such payment because the Contract Proposal (Pages
92, 93) provides for payment for square yards of pavement
and not for square yards of steel fabricated reinforcements.
2) The claim for $4,000 under Items 47 and 47C involv-
ing a substitution pursuant to Contract Amendment No. 2,
is correctly made and is approved.
3) The claim for $3,126 for additional top soil under
Items 121 and 121A is disallowed. The Public Works
Ad4
Appendiz C, Decision of Court of Claims,
State of New York.
Specifications (Pages 439, 440) provide for payment of the
number of cubic yards of top soil measured after it had
been acceptably plaeed and such payment includes full
compensation for all labor, materials, equipment and inci-
dentals necessary to complete the work as specified. The
Claimant’s failure to stock pile and place the top soil
properly and its partial loss before final placement are the
Claimant’s responsibility.
4) The claim for $9,003.06 to cover a quantity of Item
2078 which, allegedly, had not been certified, was properly
disallowed. The additional amount is for 15,005.10 lbs., of
steel water main specials at $.60 per lb. An examination
of the Contract Proposal (Page 146) under Item 2078S dis-
closes that the straight pieces of pipe, for which additional
payment was sought, were specifically excluded from this
Item.
5) The claim for additional payment under Item 76YS
in the sum of $3,505.02 was properly rejected by the State
because of nonperformance of the alleged watchmen serv-
ice (Final Estimate, Page 10).
6) The claim for additional payment of $300, for an
altered two-catch basin, field inlets, manholes and top in-
lets at the HF Ramp, was properly disallowed. No evi-
dence was adduced of the locations at which the work was
alleged to have been done. The Final Estimate included
payment for all alterations at the HF Ramp.
7) The claim in the sum of $42,118.43 for additional pay-
ment under Item 84TC which, allegedly had not been prop-
erly certified, was correctly disallowed. The claim is based
upon the incorrect assumption that 30’ was the estimated
length of creosoted timber piles. The total quantity con-
sisted of 2,694 creosoted timber piles having a total of
A55
Appendiz C, Decision of Court of Claims,
State of New York.
141,431 linear feet or an average estimated length of 54.45
linear feet, and was paid for in accordance with the Public
Works Specifications (Page 379). Piles in excess of 66
feet were paid for additionally.
8) A claim in the sum of $2,380.92 is made in behalf of
Claimant’s Subcontractor W. B. Johnson, Jr., for addi-
tional payment under Item 28B for a quantity of sheer
cofinectors. The claim was properly disallowed because
the Claimant failed to reply to a Demand (Par. 15, Demand
for a Verified Bill of Particulars) for a location by stations
where the work was performed or the material incorpo-
rated. The Claimant adduced no evidence in support of its
claim.
The Sixth Cause of Action alleges an additional amount
of $2,643.06 due under Item 601, Watchmen Service. The
State sought to have the Claimant:
‘¢. . . furnish a schedule of the dates and hours Uni-
formed Watchmen Service worked but for which the
Claimant was not paid.’’ (Demand, Verified Bill of
Particulars, Par. 16).
The Verified Bill of Particulars did not respond to the
Demand. It was marked ‘‘unaudited’’ by the State’s
auditors because ‘‘Claimant did not submit supporting
data”. No evidence was adduced in support of this Cause
of Action.
The Contract was accepted as performed on August 13,
1964. The Final Estimate was not received until August
80, 1967. The time gap is unexplained. Lawful interest
is to be computed from November 13, 1964.
The trial transcript in the above-entitled suit consists of
23 volumes and more than 4,000 pages. The Exhibits, num-
bering 626, cover more than 5,000 pages. The Verified Bill
of Particulars, motions papers, briefs and memorandums
consist of more than 1,100 pages.
A56
Appendix C, Decision of Court of Claims,
State of New York.
CPLR 4213 (a) states:
‘*Before the case is finally submitted the Court shall
afford the parties an opportunity to submit requests
for Findings of Facts. Each request shall be num-
bered and so phrased that the Court may conveniently
pass upon it.’’
The Claimant has submitted for the Court’s considera-
tion a single page containing 5 suggested Conclusions of
Law and 70 single spaced pages containing 575 Proposed
Findings of Facts and approximately 2,000 references to
the transcript and the Exhibits.
The Court has sought to render its written decision
within 60 days after final submission, as provided in CPLR
4213 (b) and (c), but has been thwarted by the sheer mass
of Exhibits and Proposed Findings of Facts. The attempt
would be time-consuming and complicated by the repetition
of evidentiary material, comment, argumentation and other
improprieties of style and substance not within the purview
of CPLR 4213. Few of the 575 Proposed Findings of Facts
could be called ultimate or essential facts.
The State submitted 98 Proposed Findings of Facts.
Proposed Finding of Fact No. 1 states: ‘‘The following
Proposal provisions (Exhibit 1 in Evidence) are applicable
to pile driving’. Three and one-half pages of actual text
from Exhibit 1 follow. The second Finding of Fact states:
‘*The following provisions of the Public Works Specifica-
tions of January 2, 1957 (Exhibit 3 in Evidence) are also
applicable to pile driving’’. Six and one-half pages of
actual text from Exhibit 3 follow. The Proposed Finding
on cofferdams states that the provisions of Exhibits 1 and
3 on the subject are applicable and two and one-half pages
of actual] text from both Exhibits follow.
A57
Appendia C, Decision of Court of Claims,
State of New York.
Under the heading General and Mixed Findings five and
one-half pages of further actual text from Exhibit 1 follow. ©
In summary, 18 pages of a total of 28 pages of the State’s
Proposed Findings of Facts are verbatim extracts from the
contract documents that are in evidence. If the State felt
that certain provisions of these two Exhibits had par-
ticular legal significance it could have called such provisions
to the attention of the Court in its Memorandum of Law.
Counsel for both parties have ignored a long line of deci-
sions defining the nature and purpose of Proposed Findings
of Facts and the specific instructions of this Court that
such Findings contain ultimate or essential facts and no
evidentiary material. Their lapses into compliance and
intelligible utterance of ultimate facts are so infrequent as
to defy the Court’s prolonged effort to search them out.
With occasional exceptions, the 673 Proposed Findings of
both parties are argumentative, discursive and evidentiary.
Accordingly, the Court has not marked the Proposed Find-
ings of either party.
The Court finds that the Claimant has failed to sustain
the burden of proof in respect of the State’s liability in all
six Causes of Action with the exception of:
The Second Cause of Action, Schedule J, Item 10, for
which the Court awards $3,232.81 ;
The Fourth Cause of Action, Schedule O, Item 14, for
which the Court awards $8,311.26;
The Fourth Cause of Action, Schedule O, Item 16, for
which the Court awards $1,108 ;
The Fifth Cause of Action, Items 47 and 47C, for which
the Court awards $4,000.
The Court awards the Claimant $16,652.07, the total of
the awards in the Second, Fourth and Fifth Causes of
Action, with lawful interest from November 13, 1964 to the
date of entry of judgment herein.
—
~
A58
Appendiz C, Decision of Court of Claims,
State of New York.
In the Seventh Cause of Action, severed by Order filed
December 20, 1967, for which judgment was awarded in
the sum of $294,401.39 and the further award to the Claim-
ant of a return of Bonds of a par value of $66,000, the
Court awards lawful interest on the amount of $294,401.39
from November 13, 1964 to December 29, 1967, date of
entry of the severance judgment, in the amount of
$36,832.89, with interest on said sum from December 29,
1967 to the date of entry of judgment herein.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Apotex C. OrLaspo
Judge of the Court of Claims
Dated: Aug. 26th 1974
New York, New York
A59
Appendix D, Partial Comparison of Claim Report
With Decision of Court of Claims.
For ease of comparison the text will be printed on the
following pages.
A60
State’s Exhibit Y (Claim Report)
Fimst Cavsz or Action
pp. I-1,2 AstoSched.A: “The Claimant’s use of wood
sheeting at these four sites was done without regard to the
conditions indicated in the Contract Documents, inadequate
pre-bid investigation of the site...”
p. 1-3 Sched. B: ‘‘ Excessive heave within sheeted exca-
vations can be prevented by the installation of the sheeting
to a sufficient depth below the bottom of the excavation.’’
_p. 14 Claimant “elected to over-excavate to remove an-
ticipated excessive heave, rather than provide adequate
— as required under the terms of the Contract
ments.
P. I-6 Sched. C: “In spite of the subsurface conditions
indicating an indefinite length of pe to be driven, the
Contractor selected to use a type of pile which, he alleges,
. ~~ a costly to him when the driven length exceeds 80
ee
p. I-15 “The delays sustained by the Subcontractor and
Contractor were a matter of their own internal arran
ments. They did not coordinate their activities .... The
primary reason the work was “disjointed”, however, was
the excessive number of cofferdam failures attributable
solely to the Claimant.”
p. 1-41 Sched. D [quote from Proposal, p. 29} ‘‘Bidders
were further forewarued of the poor subsurface conditions
in that the use of surcharge as a means of stabilizing and
consolidating compressible materials would be required at
certain locations.”
pp. I-45,46 ‘There is no basis for the Claimant’s allega-
tion that the Contract Documents implied that short coffer-
dam sheeting would be sufficient, since no sheeting of any
kind was indicated on the Contract Plans for the construc-
tion of cofferdams.’’ [Quote from standard specification
Item 82, p. 369 and from Contract Proposal, p. 124]
‘The methods of construction adopted by the Contractor
were the Claimant’s sole responsibility. His selection of
A61
Decision
Fist Cause or Action
A3319 As to Sched. A: “The Claimant’s use of wood
sheeting showed disregard of the conditions indicated in
the Contract Documents and either inadequate or no pre-
bid investigation of the site.”
A3319 Sched. B: “The Claimant’s pier excavation to
reduce exvessive heave .. . should have been within sheeted
excavation to a sufficient depth below the bottom of the
excavation.”
A3319 “Claimant chose to over-excavate to remove ex-
cessive heave rather than to provide adequate sheeting as
indicated by the terms of the contract.”
A3320 Sched. C: “The subsurface conditions indicated
an indefinite length of piles to be driven. The Claimant,
nevertheless, chose for use a pile which is more costly ac-
a to its allegation, when driven to a length in excess
of eet.”
A3321 Delays to subcontractor Raymond, “occurred pri-
marily because of a lack of coordination between the Claim-
ant and its subcontractor and also because the improperly
designed cofferdams failed when pile driving equipment
was placed on their perimeter.”
A3321-2 Sched. D: Claimant was adequately fore-
warned by the Contract Proposal, p. 29, and “further fore-
warned that certain specified locations would require the
use aaa to stabilize and consolidate compressible
material... .’’
A3322-3 “Nothing in the record would justify the Claim-
ant’s allegation that the contract implied which cofferdam
sheeting was indicated in the contract we [Quotes
from standard specifications, Item 82, p. 369 and from
Contract Proposal, p. 124]. The claimant bore sole re-
sponsibility for the selection of the wood sheeting and
the AP3 steel sheeting which resulted in the cofferdam
ailures... .”
A62
State’s Exhibit Y (Claim Report)
the inadequate timbe: --</or AP3 steel sheeting resulted
in failures of severa! cofferdams.”
p. I-47 [A) letter dated Se ber 20, 1962 from TAMS
to the District Engineer's office containfed) TAMS com.
ments on the Contractor's revised Progress Schedule and
“pointed out the lack of p in pile driving operations
resulting from numerous cofferdam failures.”
p. 1-50 ‘‘The Contract was signed with an effuctive date
of October 31, 1961 and work to be completed within 24
months. The approved P Schedule dated November
28, 1961 showed piles to be driven commencing in December
1961 and completed by December 1962. Although coffer-
dams, as a separate item of work, were not shown in the
Progress Schedule, the cofferdams would have to be con-
structed within or prior to the time period that piles were to
be driven. However, Claimant did not commence work on
the cofferdams until June 4, 1962, amounting to a time loss
of 7 months, or approximately 25 percent of the total avail-
able contract time,”
pp. I-52, 53 ‘‘In swumary, it is our opinion that the
Claimant’s failure to execute this Item of Work at the Con-
tract bid price was due solely to his failure to recognize and
meet the problems involved in the construction of coffer-
dams. In addition, the Contractor did not commence work
on the cofferdams until 7 months after the signing of the
Contract, which precluded completing the work on time.
As a result of the cofferdam failures enumerated herein-
above, two pile driving rigs were removed from the job-
site, and the rate of pile installation was greatly reduced.
There was also an overall delay in pile driving, footing,
column, and column cap concrete work, and steelwork con-
struction so that these costs also increased. Since the
Claimant realized that he was falling further behind his
progress schedule, he elected to purchase additional sheet-
ing and bracing, hire additional crews and provide addi-
tional work sites for the pile subcontractor in order to
accelerate the work in an attempt to effect completion of
the work by the Contract completion date. The costs for
extraction and replacement of damaged sheeting, addi-
A63
_A3323 “The cofferdams failures were, in turn respon-
sible for the retardation in the Progress Schedule of the
Tor, operations as pointed out in a letter from
ig to the District Engineer’s Office dated September
A3324 “The effective date of the Contract was Octo-
ber 31, 1961 and the date of completion was within 24
mor ths of that date. The Progress Schedule, dated No-
vember 28, 1961, required piles to be driven beginning
December 1961 and to be completed by December 1962.
There was no specific indication in the Progress Schedule
of a completion date for cofferdams, but, as a practical
matter, they had to be constructed sometime before the
~ could be driven. Work began on the cofferdams on
une 4, 1962, a loss of approximately 7 months of the 24
months allowed for the completion of the entire contract.”
A3326 “The Claimant defaulted in its plainly defined re-
sponsibilities under the Contract Proposal and Public
orks Specifications in respect of the cofferdams. It
failed to start work on the cofferdams until approximately
7 months had elapsed from the date of the signing of the
Contract. The cofferdam failures were responsible for the
removal from the job-site of two - driving rigs. The
consequences of overall delay in pile driving, footing, col-
umn and column cap concrete work and steel work con-
struction were an increase in overall cost. The Claimant
having fallen far behind in his Progress schedule, incurred
the increased expense of additional sheeting and bracing,
hiring additional personnel and providing additional sites
for the pile subcontractor, in attempting to meet the con-
tract completion deadline. The additional cost for the re-
moval and replacement of damaged sheeting for new sheet-
ing and for the excavation of heave resulted from the
Claimant’s erroneous choice of wood sheeting and AI-3
steel sheeting. Had the Claimant used the Z-type sheeting
of correct size from the inception of the cofferdam con-
struction, had they done so timely instead of delaying 7
A64
State’s Exhibit Y (Claim Report)
tional sheeting, and excavation of heave can only be attrib-
utable to the Contractor’s choice of inadequate wood and
AP-3 steel sheeting in the initial stages of the work. Had
the Z type sheeting of proper lengths been employed from
the beginning of the job, the additional costs claimed by
the Contractor would not have been incurred. This claim
is hereby rejected.”
p. 52 “One year after the Contract was executed in Oc-
tober 1961, the problem of the cofferdam construction was
finally resolved. Unfortunately, it was too late to econom-
ically perform the remaining work of this Item within the
remaining Contract time, since the urgency of the work did
not permit the multiple use of sheeting as is normally
practiced.’’
pp. 56,57 ‘The rapid placeyient of heavy embankments
using heavy tractors to move the material is not “standard
construction practice” for this type of work. Rather, the
Claimant should have used proven construction practices
where organic silt is involved. These practices should have
included the use of lighter construction equipment and the
placement of thin blankets of fill.... The original strength
can be regained if the material is allowed to remain un-
disturbed for a period of approximately 24 hours.”’
p. 57 ‘*. . . eofferdam construction commenced in June
1962 at which time the Claimant placed temporary fill in the
Flushing River. The fill was placed to facilitate cofferdam
construction.’’
p. I-58 ‘In essence, the Claimant’s own construction
procedures were responsible for the mud waves, so there-
fore he was obligated to remove them, inasmuch as they
blocked the flow of the Flushing River. All costs for re-
moval of the mud waves should have been anticipated b
ee and included in Contract bid Item 82S, Cof-
erdams.’’
pp. I-63,64 Sched. F: [Quotes p. 30 of Proposal and
pp. 207 and 369 of standard
specifications. }
“TIad interlocking Z-type steel sheeting heen used and
properly placed to sufficient depths to penetrate the under-
A65
Decision
months, the chain of costly misadventure would not have
been forged.’’ |
A3327 “The temporary Z-type sheeting might have been
economically reused by the Claimant had the Claimant
made the choice in the first place. Their iate use when the
Claimant was lagging badly precluded such reuse.”
A3329 Sched. E: “The Contract Proposal and Public
Works po ye rege om were sufficiently explicit for a Con-
tractor of size, standing and longtime expertise to have
been forewarned that the rapid placement of heavy em-
bankments, and the use of heavy tractors to move the ma-
terial, on a deep substratum of organic silt, would probably
cause mud waves. The contractor could have chosen lighter
construction equipment and a thin blanket of fill and al-
lowed a full day for the organic silt to regain its strength.”
A3329 “The Claimant began to place temporary 4] in
the Flushing River in June 1962 as a means of facilitating
the construction of cofferdams.”
A3329-30 “The temporary alteration of the bounds of
the Flushing River was a measure of convenience for such
construction and the nud waves were a concomitant of the
Claimant’s ill-chosen construction methods.”
A3331-2 Sched. F: [Quotes p. 30 of Proposal, and pp.
207 +i 369 of standard specifica-
tions.
“The Claimant’s failure, in respect of cofferdams, was
responsible in a good measure for the increased cost in-
A€e
Seete's Enhehet Y i Chain Report)
pug ooyedee 25 aged oBectsreiy semi the excavations, the
fists af protegeng wenld have bees, commderably reduced.”
@ $.46F ~Fise Werht's Fase Cotpersicnn contended that
a wae JD Sactere % place pipes wader the dikes and
Riches GC. gop 17842 lQuctes from pp. 30-31 and re-
fers te @. 133 of Contract Pro-
poass, quetes p. 138, refers to
@ i235; geters to contract draw-
wage 33, GO and £99.)
e $:90 “Ae geevecmely stated Serein the subsurface
crmisloums cameranteged f the sete were mot different from
Thee rqudcioese Ioaetybed sander tke Spemal Foundations
Manes oe page 27 of the Cemitract Proposal. . .*’
“Tie Sedut Ger She detege deremen te og rt ali foot-
cage on prles wae The preteate of +t.0ustabic rface con-
Stueme aueapebic of eoppetiong spread footings."
2506" Aemmetomgiy, the euboontractor'’s claim is in-
oo, oy Smet, the swneurred losses during
She cieretne of She oesit, koe clases shold be directed against
the Gemets) Cleatcacter.~
Secene Cacse o¢ Actios
@ $2.5 ~We are of the agemuen that tis portion of the
less bee ce setedey. ... In fnet. though the pipe-ste
Sages gee (203.430) Bad not yet boon 5 app ’
eens commmernes deving sack piles on February 13,
= a | Me. Pier 5. We ae therefore, o
pete’ nis Lobe ime t oe ng approval o
Vier? eigrespeketet ated polee, dering that types of
es omg hanwewese Lad been approved by the State on
ommary 5 $962 fer Costract PAVWES1-4."’
A67
Decisi
curred in dewatering, a failure which might have been
avoided by the use of Z-type steel sheeting of sufficient -
depth.”
A3333 “The flooding of the project site occurred be-
cause the Claimant failed to install drainage pipes under
the earth dikes.”
A3334-6 Sched. G: [Quotes from pp. 30-31 and refers
to p. 123 of Contract Proposal,
uotes p. 138, refers to p. 135; re-
ers to contract drawings 53, &0
and 199.]
A3339-40 Sched. I: “The subsurface conditions at the
site were not different from the conditions described in
the Special Foundation Notes of the Contract Proposal to
which the Court has already referred.
The design decision to support all footings on piles was
based on such subsurface conditions.
The State is not liable to the contractor-claimant under
Schedule I, nor to the subcontractor. The subcontractor,
if it has incurred any losses under the contract of Novem-
ber 7, 1961, would have to seek recourse against the Con-
tractor.’
Seconp Cause or Action
A3340 Sched. J: “The Contract was entered into Octo-
ber 31, 1961. The first pile rig arrived on jobsite January
30, 1962 and the first pile was driven February 13, 1962 by
Raymond International, Inc., pending the approval of their
pipe-step taper pile (ED-410) and other piles and equip-
ment. hiomes expected that the piles and hammers
which it intended to use on this jobsite would likely meet
with the State’s approval inasmuch as similar instruments
had been approved by the State on January 5, 1962 for
Contract FA 61-4.’’
~ ——— =
a i — =
eS Sa OOS see Oe ea
A68
State’s Exhibit Y (Claim Report)
p. Il4 “. .. the Claimant that there was a
general, continuing and pervasive failure by the State to
properly cordinate the work and to provide JDP with rea-
sonably free and unobstructed access to the site of the work.
Beginning in February, 1963 and continuing until JDP’s
work was completed, equi t, ahashahe call labor forces
of contractors for the World’s Fair were present on the
jobsite. These contractors _— equipment and stored
materials all over the site, extensive work on the site,
and were continually moving men and equipment back and
forth over the site. . . . The work of these contractors was
not coordinated with that of JDP and their presence on
ps — obstructed, delayed and interfered with
"8s work.”’
tae II-9, II-17 “We agree that interference did in fact
e place; however, there is no basis for a claim against
the State of New York, which was not the offending party.”
‘*The provisions of Coordination of Work-Availability of
Site, pages 34 and 35 of the Contract Proposal, clearly in-
dicated to the Claimant that delays, interruptions, and
hindrances were to be anticipated... .”’
p. II-23 ‘‘(1) Claimant alleges that the State unreason-
ably delayed in submitting timber pile order lists to JDP
after the timber test piles had been driven. The inclusive
dates of this failure are December 1961-January 1962... .’’
‘*The Engineer’s diary records that on December 5, 1961:
1) Subcontractor H. Johnson arrived on the job; 2) the
District Engineer Ss by telephone, H. Johnson as
Subcontractor; 3) the driving of two timber test piles in
structures 120 and 123 by the Subcontractor Johnson.
‘‘The Engineer’s diary records that the remaining 13
timber test piles were driven between December 6 and 29,
1961. The estimated quantity of 1,000 L.F. was overrun
by 35 feet” (sic).
Decisi
A3341-2 “The —o mye that the State failed to coordi.
nate the work properly and to provide for the claimant’s
access to the site attributes responsibility to the State fora
situation completely controlled by and the “+ ‘eee of
others, by the terms of the Contract Proposal.
From February 1963 to the date of completion of claim-
ant’s work, the men, materials and equipment of numerous
other contractors of the World’s Fair Corporation con-
verged on the jobsite.
The contractors, including the claimant, failed to coor-
dinate their activities thus obstructing, delaying and in-
terfering with the claimant’s work.”
A334.. “The Claimant, in turn, obstructed, delayed and
interfered with other contractors. Responsibility and lia-
bility are attributable to these contractors and no liability
T1012) to the State. (Contract Proposal, Pages 34-40,
A3341 “The Claimar: alleges (Verified Bill of Particu-
lars, 6C, Pages 47-49) that the State unreasonably delayed
from December, 1961 to January, 1962 in submitting timber
ile order lists to it after the timber test piles had been
riven.
The approval of H. Johnson as subcontractor was given
promptly on December 5, 1961 and two timber test piles
were immediately driven. The remaining 13 timber test
piles were driven between December 6, 1961 and December
29, 1961. The estimated quantity of 1,000 linear feet was
overrun by 35 feet” (sic).
-¢
y
“s
* ;
A70
State’s Exhibit Y (Claim Report)
p. [1-27 ‘‘TAMS, in order to expedite the work, per-
formed detailed layout including off-setting drainage struc-
tures and ditches, re-setting centerline after excavation and
other detail layouts, which were, in fact, the responsibility
of the Contractor.’’ |
‘*By letter dated January 15, 1962 to TAMS, Claimant
requested stake-out of various piers, including a request to
“restake the centerline of Ramp Piers HD-1, HD-2 and
HD-3”, work not required to be performed by TAMS. Sub-
sequently, by letter dated February 2, 1962, the State trans-
ferred. the responsibility of “Stakeout Survey” from
TAMS to the Claimant.”
p. II-34 ‘‘(5) Claimant alleges that throughout the job
the Stake was unreasonably slow in responding to requests
by JDP and in supplying necessary clarifications, ap-
provals, information, etc.
Our comments are: ;
The Claimant’s statement is too vague to permit us to
reply to his charges until they are spelled out in detail.’’
p. II-38 [Quote from Specifications, p. 378, h.}] ‘‘Pile
driving commenced on this project on February 13,
1962, at which time a ag tapered pile was driven to
a depth of 106 feet in Pier HC-1 without obtaining the re-
uired blow count. Raymond continued driving piles in
C-1 on February 14 and 15, and on February 16 drove
four piles in Pier HC-2. These piles were being driven to
an average depth of 140 feet as compared to the State’s
estimate of 75 feet. On February 20, 1962, this matter was
discussed by telephone with Assistant District Engineer,
Ralph Hollweg, to the effect that the overrun was alarming
and warranted close examination by the District Engineer’s
office.’’
p. II-39 “The cast-in-place concrete piles on this project
were considered by TAMS to develop their load-carrying
capacity by a combination of side friction and point bear-
ing. It was noted that the set-up of the svil experienced
after an intervai of one day after driving, indicated that
the frictional resistance, which was minor during driving,
built up rapidly after the driving stopped. Therefore, the
A71
Decision
A3343-4 “To — the work TAMS provided the lay-
out, the Claimant having failed to comply with the Con-
tract Proposal. On January 15, 1962 the claimant wrote
to TAMS requesting a stake-out of various piers. On
February 2, 1962, the State informed the Claimant that it
was transferring the responsibility for the stake-out from
TAMS to the Claimant in accordance with the obligation
imposed on the claimant by the Contract Proposal.”
_A3344_ “The Claimant’s allegation (Verified Bill of Par-
ticulars, Page 48) that “Throughout the job the State was
unreasonably slow in responding to requests by JDP and
in supplying necessary clarification, approvals, informa-
tion, etc.” is general to the edge of vagueness and without
any visible support in the record.
A3344 [Quote from Specifications, p. 378, h.] “Pile-
driving began on February 13, 1962 with a pi e-step ta-
pered pile to a depth of 106 feet in Pier HC-1. The subcon-
tractor continued driving piles at HC-1 on February 14,
and 15, 1962. On February 16, 1962, it drove four piles in
Pier HC-2. These piles were driven an average of 140 feet
without obtaining the required blow count, a figure in excess
of the State’s estimate of 75 feet.”
A3345 “The so-called Engineering News Record For-
muia of measuring driving resistance fy blows per foot and
of determining the allowable |oad capacity was regarded as
unreliable by TAMS. Although the Public Works Speci-
fications (Item 88P) makes provision for load tests for
piles, the manner of loading a test pile must be as shown
or indicated in the plans or as ordered by the Engineer.
— = —_——— S--—
|
A72
State’s Exhibit Y (Claim Report)
a resistance measured in blows per foot was not con-
side to be a reliable indication of the frictional resist-
ance. The ENR formula is also an unreliable indication -
of determining the allowable load capacity of the piles.
The only reliable method for determining’ such capacity
would be through performing load tests. ad tests were
not included in the Specifications issued by the Albany of-
fice of NYSDPW.”
p. II-38 ‘‘This criterion was confirmed by the District
Engineer in a letter dated July 25, 1962 for installation of
pom sg Ye Concrete Piles-Open End, to wit: ‘The re-
uired i shall be 150% of that computed
rom the ENR formula, utilizing the 35-ton pile bearing
requirement... .’”’
pp. II-41, 42 ‘‘On August 14, 1962 the Resident Engi-
neer’s diary recorded the driving of a 221’ length pile in the
HA-abutment. The Resident Engineer contacted the TAMS
office (Dr. Chu) and representatives of the State, Mr. S. B.
Schiffman and R. L. Carter, in order to study the feasibility
of “freezing” piles at 110-115 foot depths. Pipe piles of
12” diameter were driven on August 15, 1962 and allowed
to remain undisturbed over-night. Dr. Chu of TAMS and
R. L. Carter of the State were witnesses to the redriving
of the piles. The tests showed favorable results, and the
District office on August 16 approved new criteria for pile
driving in said abutment, and a minimum pile | of 119
feet was set. Correspondence by Consultant of August 21
and approval by D.E. on September 7 verify the verbal
approval of this pile driving criterion.”
pp. II-68-70 ‘The above letters, with the exception of (f),
were addressed to TAMS and did not have the subject of
extensions of time as their main theme. We believe that
the excerpts which we have quoted c! demonstrate
Ces Go seqpeste Sr eutenniane of time, Claimant
refers to in his claim, were informai, at best.’’
[Quotes Art. 4 of standard specifications filing
time for formal application for extension of time.
yaaeeee————e—eEeeEeEs SS lc Ol eeee”.hC _
A73
Decisi
Neither the Contract Proposal nor any order of the Dis-
trict Engineer dealt with the subject.” .
“As late as July 25, 1962, the District Engineer, in a
letter to TAMS, stated the standard for the installation of
cast-in-place concrete piles.
“The required driving resistance shall be 150% of that
computed from the Engineering News Record formula
utilizing the 35 ton pile bearing requirement... .”
A3345-6 “On August 14, 1962 according to the Resident
Engineer, a 221 foot pile was driven in the HA-Abutment.
On A t 15, 1962 TAMS studied the feasibility of “freez-
ing” piles at no more than 110-115 foot depths, and an ex-
periment the same day (In allowing the piles to remain
undisturbed overnight) proved successful. On September
7, +e ee District Engineer approved the “freezing”
me <
A3348 “Informa! written requests for time extensions
and reimnbursements appeared in letters, dealing with other
subjects, from the Claimant to TAMS dated January 23,
1962” (sic).
A3349-50
(Quotes Art. 4 of standard specifications concerning filing
time for formal epplication for extension of time.)
A74
State’s Exhibit Y (Claim Report)
[Refers to letters and statements of State of March 20,
June November 8 and December 31, 1962; January 11,
J aes 31, 1963, June 13, 1963 and August 8, 1963.)
II-81 [as to in the Second Cause of Action
the State’s consultants denied liability on all sixteen items
except item 10:])
“10. Additional Cost gay mae i ee »
t of comments are: Pa:
the ‘additional he yay be allowable since the silicone was
added on instructions from the State.”
Tuirap. Cause or Action
. III-1 “Our comments are: It seems that the Claimant
nes based his claim for additional payment in the amount
of $455,008.62 in Claim III on the conditions and allega-
tions previously described in Claims I and II.
Fourra Cause or AcTion
pp. IV-1 to [V-16 [All 16 miscellaneous items were re-
jected in the State’s consultants’ report.)
. 1V-5 As to item 5, test cores, letter of District Engi-
oie “of April 28, 1969” is quoted. (sic) [The date is a
typographical error. |
A75
Decision
[Refers to letters and statements of State of March 20,
June 26, November 8 and December 31, 1962; January 11,
June 13 and August 8, 1963.]
A3351 Second Cause of Action damages:
“Of the sixteen items comprising the total amount only
Item 10 is one for which the Court finds the State liable.
The Claimant incurred the additional cost of siliconing
concrete deck work in the sum of $3,232.81.... The
silicone was added at the State’s instructions... .”
Tarp Cause or Action
p. 35 A3352 “The Third Cause of Action is based en-
tirely _~ the conditions and allegations already set forth
in the First and Second Causes of Action with both of
which the Court has already dealt. The Claimant seeks
to burden the State with the responsibility for delay in
completing the contract from its scheduled date, October
30, 1963, to its extended date, July 16, 1964.”
Fourts Cause or Action
A3356-63 [All 16 miscellaneous items were rejected in
the decision except item 14, additional reinforcing steel in
connection with the redesign at the HE Ramp.)
A3357 [As to item 5, test cores, letter of District Engi-
neer “of April 28, 1969” is quoted (sic). [The identical
typographica! error appears in the decision as in the claim
report. ]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.