Opinion
July 11, 1967
Appeal by the State from a judgment of the Court of Claims in favor of the claimant. On a prior appeal to this court we affirmed the judgment of the Court of Claims except as to the second cause of action as to which we reversed and ordered a new trial. ( Tufano Contr. Corp. v. State of New York, 25 A.D.2d 329. ) As pointed out in the first appeal, the contract called for a certain number of detours, now determined to be 33, and the construction actually caused some 123 to 128 separate detour construction projects. It appears that all of the detour construction occurred in approximately the same locations as the contract locations of the original 33 detours. It also appears that the word "detour" has been used to describe detour operations such as widening or lengthening of detours once placed. The damage to the claimant lies in the fact that instead of doing all of the detour construction at each location at once, it was necessary to do a portion and then return at later dates to do additional portions or widening; all this in large part to accommodate claimant's operations to the work of other State contractors in process at both ends of claimant's project. Upon the prior appeal we found that the award on this cause of action had been made by simply subtracting the amount found as that which the State paid for all detours from the amount found as the claimant's cost and unpaid profit of constructing all detours. This we determined was erroneous in "that it is only the extra work above that utilized in constructing the [33] original detours contemplated in the contract for which the claimant is entitled to recover in quantum meruit." (Citations omitted.) ( id. 331) In essence we remitted for proof which would reduce the unsegregated cost of all the detour construction by the amount of the actual cost incurred in performing the detour construction claimant was obligated to perform under the contract. Claimant's Exhibit 14 in evidence on the first trial shows that the actual quantities used in all detours of contract items were as follows: Item 2S- 16,749.87 cubic yards; Item 8X-53,912.69 square yards; Item 45- 7,581.9 cubic yards (the final pay quantity accepted by claimant was 7,166.3 cubic yards); Item 51M- 8,573.64 tons; Item 513A- 8,582.30 linear feet; Item 513B- 25,086.75 linear feet. Total State payment for these items was $227,465.04. Item 76S covered cost of traffic maintenance on all detour construction and pursuant to a formula employed on retrial by claimant we find that the part of the total State contract payment allocable to this item is $4,399.20. We find, therefore, that the total State payment for the detour contract items, based on contract unit prices, was $231,864.20. Upon the retrial the claimant submitted various exhibits designed to show what the State would have paid for the construction of the detours designed in the original contract had they been constructed as designed and what its costs would have been for such detours based on its so-called "actual average unit costs" for such items on the entire construction. The trial court, apparently relying on these exhibits, mistakenly returned to the over-all detours construction cost without diminution thereof by the cost of the contract items; and gave no effect to proof respecting the latter, as being in the amount of $311,140.53, to which both parties' briefs advert and which sum we adopt as such cost. The total claimed for the direct costs and profit plus subcontracting costs less so-called duplication on the second cause of action as noted on the first appeal is $1,334,625.48. (See 25 A.D.2d 329, 331.) Of this amount some $61,221.62 is claimed for overhead (based on 10% of direct labor, material and payroll taxes) and some $67,343.78 represents unpaid profit (based on 10% of direct labor, materials, payroll taxes and allocated overhead) as shown in claimant's exhibit 11. The State has paid the sum of $890,972.50 for all detours and of this it appears that the claimant received the sum of $231,864.24 as compensation for the contract items involved in the construction of the detours and these items reflect payment for some of the labor and materials, etc., which form the basis for the overhead and profit. The claimant failed on the retrial to prove either that these items of overhead and profit were not within the contemplation of the parties as to the original contract items or to provide any basis for a breakdown of such items between that included in the payment for the original contract items and the balance which might be "extra work", and thus the estimated overhead and profit must be disallowed since any figure now adopted would be speculative. Exhibit 11 also sets forth the sum of $85,059.67 for subcontracts as a part of this cause of action. It appears that this sum represents the amount paid by the claimant to subcontractors for materials untilized in paving those areas of the parkway after the detours were removed therefrom. In this respect the contractor has apparently been paid the unit prices for the primary construction and since it does not appear that this was "extra work" related to the qualitative change caused by the detour work, there is no basis for a recovery of this item and it must be disallowed together with the item claimed for profit on such subcontracts in the sum of $4,252.99. The remaining item under this claim which the State strenuously contests is one included by the claimant on behalf of its subcontractor J.C. Peterson Construction Corporation. This item consists of costs incurred by the subcontractor in that it was forced to go backward on the job at various times because of the numerous detour constructions, thereby losing time, causing equipment moving expenses, and causing inefficient methods of pouring concrete. Although the proof of damages as to this item is weak, it appears that these costs are sufficiently shown to substantiate allowing the same together with the sum claimed by the claimant as profit on that item. In accordance with the foregoing we find the claimant's damage on its second cause of action to be as follows:
Total claimed on the trial for costs and profits (less duplication) .............................................. $1,334,625.48 Less extra work items disallowed: Overhead .................................... $61,221.62 Profit ........................................ 67,343.78 Subcontracts ................................ 85,059.67 Profit on above subcontracts ................ 4,252.99 217,878.06 __________ _____________ Balance ................................................... $1,116,747.42 Less State's payment for extra work: Payment by State for all detour work ........ $890,972.50 Less allocated State payment for items specified in contract ....................... 231,864.24 ___________ Payment by State for extra work ............................. 659,108.26 ____________ Balance ................................................... 457,639.16 Less Claimant's cost of items specified in contract ......... 311,140.53 _____________ Balance ................................................... 146,498.63 Plus duplication of items in subcontracting which were originally subtracted from the total claim but as a result of the disallowance of such items are no longer duplicated ..... 7,758.68 _____________ Balance unpaid for extra work ............................. $154,257.31 ============= Of the above sum of $154,257.31 the amount of $72,904.62, plus $3,645.23, represents the J.C. Peterson subcontracting item together with profit at 5% on such item. The findings of fact of the Court of Claims should be modified as indicated above and the claimant awarded the sum of $154,257.31 on its second cause of action, together with appropriate interest. Judgment modified, on the law and the facts, in accordance herewith, and, as so modified, affirmed, without costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum per curiam.