Opinion
No. 2020-03429 Claim No. 129671
12-13-2023
Laquila Group, Inc., respondent, v. State of New York, appellant.
Letitia James, Attorney General, New York, NY (Judith N. Vale and Mark S. Grube of counsel), for appellant. Goetz Fitzpatrick LLP, New York, NY (Donald J. Carbone and Victor Rivera, Jr., of counsel), for respondent.
Letitia James, Attorney General, New York, NY (Judith N. Vale and Mark S. Grube of counsel), for appellant.
Goetz Fitzpatrick LLP, New York, NY (Donald J. Carbone and Victor Rivera, Jr., of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, CARL J. LANDICINO, JJ.
DECISION & ORDER
In a claim to recover damages for breach of contract, the defendant appeals from a judgment of the Court of Claims (Faviola A. Soto, J.), dated February 11, 2020. The judgment, upon a decision of the same court dated December 23, 2019, made after a nonjury trial, is in favor of the claimant and against the defendant in the principal sum of $16,469,608.77.
ORDERED that the judgment is modified, on the law, by reducing the award to the claimant from the principal sum of $16,469,608.77, to the principal sum of $16,437,211.82; as so modified, the judgment is affirmed, with costs to the claimant, and the matter is remitted to the Court of Claims for the entry of an appropriate amended judgment accordingly.
In December 2009, the claimant, Laquila Group, Inc. (hereinafter Laquila), and the State of New York, acting by and through the New York State Department of Transportation (hereinafter DOT), entered into a contract for reconstruction work on the Staten Island Expressway. The contract outlines a three-tiered dispute resolution process through which a contractor must submit a claim for additional compensation before filing suit. In May 2017, Laquila commenced the instant claim seeking delay damages for a series of time extensions on the project. After a nonjury trial, judgment was entered in favor of Laquila and against the State in the principal sum of $16,469,608.77. The State appeals.
Contrary to the State's contentions, the Court of Claims properly determined that Laquila completed all mandatory steps of the dispute resolution process pursuant to the contract before commencing the instant claim. Although "[a] plaintiff's failure to comply with a condition precedent to suit entitles a defendant to dismissal of the action" (Command Components Corp. v HWJ Eng'g & Surveying, PLLC, 189 A.D.3d 990, 991), the State failed to demonstrate that Laquila was required, as a condition precedent to suit, either to notify DOT of the DOT Commissioner's failure to respond to its claim for additional compensation or to submit unresolved claims to the closeout process.
Further, contrary to the State's contention, the Court of Claims properly refused to admit into evidence a letter purportedly indicating that Laquila failed to submit a certification pursuant to section 105-14(F) of the contract and requesting that Laquila provide that certification. The State failed to lay a proper foundation for the admission of the letter as a business record (see CPLR 4518[a]; Citibank, N.A. v Cabrera, 130 A.D.3d 861, 861).
The State also failed to establish its entitlement to judgment on its affirmative defense that Laquila did not fulfill the requirements of State Finance Law § 145 and the parallel contractual provisions. State Finance Law § 145 provides that a construction contract awarded by a State department or agency shall not "bar the commencement of an action for breach of contract on the sole ground of the contractor's acceptance of final payment under such contract provided that a detailed and verified statement of claim is served upon the public body concerned not later than forty days after the mailing of such final payment." Similarly, section 109-09(E) of the contract between Laquila and DOT provides that the contractor's acceptance of final payment "shall constitute and operate as a release to the State from any and all claims of any liability to the Contractor... unless the Contractor serves a detailed and verified statement of claim upon the NYS Department of Transportation not later than 40 days after the mailing of such final payment."
The State contends that Laquila did not comply with State Finance Law § 145 and section 109-09(E) of the contract because the notice of claim served on DOT, which was also served as a statement of claim pursuant to State Finance Law § 145 and section 109-09(E) of the contract, was not properly verified. Pursuant to CPLR 3022, "when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient 'with due diligence' returns the petition with notification of the reason(s) for deeming the verification defective" (Matter of Miller v Board of Assessors, 91 N.Y.2d 82, 86, quoting CPLR 3022; see Ritangela Constr. Corp. v State of New York, 183 A.D.2d 817, 819-820). Here, the State waived any objection to the verification of Laquila's notice of claim by failing to deem the notice defective (see CPLR 3022), and similarly waived its objection to the notice under State Finance Law § 145 and section 109-09(E) of the contract. Laquila filed the notice of claim simultaneously with the commencement of this litigation, and the notice of claim was explicitly identified. Therefore, the State had sufficient opportunity to deem the notice of claim defective (cf. Ritangela Constr. Corp. v State of New York, 183 A.D.2d at 820). In any event, even if the State had not waived this contention, Laquila's notice of claim was properly verified in accordance with Court of Claims Act § 11(b) and CPLR 3020(d)(3).
As Laquila correctly concedes, the judgment must be modified by reducing the damages award by $32,396.95. That sum was based on a delay that was noncompensable under the terms of the contract.
The State's remaining contentions are without merit.
Accordingly, we modify the judgment by reducing the award to Laquila from the principal sum of $16,469,608.77, to the principal sum of $16,437,211.82; affirm the judgment as so modified, and remit the matter to the Court of Claims for the entry of an appropriate amended judgment.
CONNOLLY, J.P., MALTESE, DOWLING and LANDICINO, JJ., concur.