Opinion
October 2, 1986
Appeal from the Court of Claims (McCabe, J.).
Judgment in claim No. 1 affirmed insofar as appealed from and judgment in claim No. 2 affirmed, with one bill of costs.
The court's finding that the State was not in breach of contract by terminating the same was not against the weight of the evidence (see, Cohen v Hallmark Cards, 45 N.Y.2d 493, 498). The record indicates that the State was inclined to extend the date for the completion of the contract at the time its deadline arrived on August 1, 1977, upon an oral request to do so by the claimant. The offer of extension was contingent upon expeditious and diligent performance of work pursuant to a revised progress schedule to be submitted by the claimant, for remaining contract work. The claimant's own prior actions were instrumental in his need for additional time to complete the job. In response, the claimant declined the offer and stopped working. He then failed to resume performance and instead began removing his equipment.
The claimant's failure to resume performance and his removal of equipment at a time when there remained various items of the contract left to be performed support the court's finding that the State was not in breach of contract and that the claimant was (cf. Tibbetts Contr. Corp. v O E Contr. Co., 15 N.Y.2d 324, 338).
As to the claimant's second claim, that his personal office trailer was not on the construction site and was therefore not properly seized by the State pursuant to a contract term permitting such seizure following termination of the contract for cause, the record indicates that the office trailer was parked at a location specifically requested by the complainant in an area adjacent to the construction. Moreover, a second trailer provided by the complainant as a contract item which served as the field office for the State's on-site engineer was parked even further from the road under construction than was the claimant's personal office trailer. Under these circumstances, and where there were no contract limit lines in the plans, the court's finding that the office trailer was on the construction site was fair and reasonable (see, Farrell Lines v City of New York, 30 N.Y.2d 76, 83; A.J. Cerasaro, Inc. v State of New York, 97 A.D.2d 598).
We have considered the claimant's remaining contentions and find that they are either unpreserved for review or without merit. Lazer, J.P., Mangano, Lawrence and Kooper, JJ., concur.