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A.E. Ottaviano, Inc. v. State

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 27, 1971
36 A.D.2d 899 (N.Y. App. Div. 1971)

Opinion

April 27, 1971

Appeal from the Court of Claims.

Present — Goldman, P.J., Marsh, Witmer, Cardamone and Henry, JJ.


Judgment unanimously modified on the law and facts in accordance with the memorandum herein, and as so modified affirmed, with costs to claimant. Memorandum: The claim here arises out of a contract dated May 1, 1959 for the construction of a portion of the Scajaquada Creek Expressway in the City of Buffalo. Claimant's contract called for the placement of pier foundations supported by steel bearing piles, retaining walls, four connecting ramp structures within the area of the Thruway, and the construction of the exit and entrance ramps for the connection to the Expressway and the elevated mainline viaduct of the Expressway to a point approximately 1.26 miles easterly from the Thruway. At the time of the letting to claimant there were three contractors working on the site. Bates Rogers, Thruway contractors to the south of Scajaquada Creek, were working in the westerly portion of claimant's site, Stimm Associates, Inc., Thruway contractors, north of the Creek in the central portion of claimant's site, and Johnson, Drake Piper in the easterly portion of claimant's site on the Expressway. The contract also provided that claimant "shall coordinate his operation with those of the Thruway Contractor and the Contractor for Section 2, to insure the least possible delay in the completion of their contracts". The trial court correctly held that the State did not actively interfere with claimant's performance in violation of the terms of the contract and did not unduly delay claimant's work by its failure to make the railway site available to claimant. In disclaiming responsibility, the State argued that the real causes of delay in completion were labor disputes and adverse weather conditions. A fair estimate for delay occasioned by the Nationwide steel strike, bad weather in the winter-spring of 1960, and a trade-union six-week strike in the summer of 1960 is five months, which, added to the completion date of July 1, 1962, adequately coincides with the actual completion date of November 24, 1962. This delay was not chargeable either to the State or to claimant. The one year added by the State to the anticipated completion date related solely to overlapping between contractors on the site complicating their work. In order to assess engineering and inspection charges the State had the burden of proving that the work was unduly delayed by the contractor for unwarranted reasons. The State presented no evidence on this issue nor on a Thruway claim for expenses allegedly incurred as a result of this contract. Consequently, engineering and inspection services should not have been assessed against claimant. Insofar as the trial court assessed these charges against claimant, its determination should be modified and claimant should be permitted to recoup from the State the sum of $13,392.43 representing the amount of these improper assessments.


Summaries of

A.E. Ottaviano, Inc. v. State

Appellate Division of the Supreme Court of New York, Fourth Department
Apr 27, 1971
36 A.D.2d 899 (N.Y. App. Div. 1971)
Case details for

A.E. Ottaviano, Inc. v. State

Case Details

Full title:A.E. OTTAVIANO, INC., Appellant-Respondent, v. STATE OF NEW YORK…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Apr 27, 1971

Citations

36 A.D.2d 899 (N.Y. App. Div. 1971)