59 Misc. 2d 220 | New York Court of Claims | 1969
The contract in issue was entered into between claimant and the State of New York on or about December 4, 1963 and was designated as Contract Nos. FICBE 63-3, CBE 63-4, and TNE 63-1, for the improvement of the Cross Bronx-Throg’s Neck Expressway. On or about August 25,1967, the claimant received from the State a document which the State in its moving papers has referred to as a completed final agreement and final estimate. Thereafter, on October 2, 1967, the State of New York tendered its check to claimant as the final payment under the contract. The claimant herein filed its notice of intention to file a claim on April 1,1968. The claim itself was filed on June 12, 1968.
It is undisputed that, incorporated in and constituting an integral part of the present contract, are the provisions of the Public Works specifications of January 2, 1962. These specifications provide in pertinent part as follows: ‘ ‘ article 10. final payment. After the final acceptance of the work, the Engineer shall prepare a final estimate of the work done from actual measurements and computations relating to the same, and he shall compute the value of such work under and according to the terms of the contract. This estimate shall be certified to as to its correctness by the Engineer. Upon approval of .such final estimate by the District Engineer, it shall be submitted to the Superintendent for final approval. The right, however, is hereby reserved to the Superintendent to reject the whole or any portion of the final estimate, should the said certificate of the Engineer be found or known to be inconsistent with the terms of the agreement or otherwise improperly given. All certificates upon which partial payments may have been made being merely estimates, shall be subject to correction in the final certificate or estimate.”
The State concedes that the final estimate relied upon herein was neither certified nor signed by the Superintendent of Public
We turn then to the contents of Official Order 531, issued May 9,1961. The wording of this order is quite specific in delegating to a Deputy Chief Engineer the authority to accept the work of a completed .State highway pursuant to section 44 of the Highway Law, and also to accept the final estimate prepared therefor. That the Superintendent of Pubic Works has the authority to issue an order of this nature appears to be settled. (Ingalls Iron Works Co. v. Fehlhaber Corp., 29 A D 2d 29.) The question remains, however, whether such an order, standing alone, is sufficient to transform the document of August 25, 1967 into a final estimate as contended by the State, thereby foreclosing claimant’s cause of action. The .opinion of the court is that it is not.
The language of the Public Works specifications of January 2, 1962 is explicit in directing that the final estimate shall be .submitted to the Superintendent of Public Works for final approval. This provision is an integral part of the contract entered into
In any event, the plain and concise import of the quoted language aside, the court is of the opinion that it must deny the within motion for another, equally compelling reason. It has already been determined by the courts of this State that the official order with which we are here concerned relates solely to the internal operation of the Department of Public Works. (Ingalls Iron Works Co. v. Fehlhaber Corp, 29 A D 2d 29, supra.) As such, no duty is cast upon the department to advise those with whom it has no contractual dealings of the terms thereof. However, where an agreement has been entered into between the department and a contractor, the contractor has a right to rely upon, and proceed pursuant to, the terms thereof. Accordingly, any change within the organizational structure of the Department of Public Works which seeks to modify or alter in any way the purport and meaning of that duly executed contract should and must be made only upon a showing of proper notice, and in strict conformity with the terms of the existing contract provisions and statutory authority. In enacting Official Order No. '531, neither of these elements was given consideration by the State.
No prior written notice of the promulgation of the within order was even given to this claimant, nor was any notation thereof or reference thereto contained in the final estimate. It was not until January, 1969, approximately 17 months after the service of said estimate, and 8 months after the filing of the notice of claim, that its existence was brought to claimant’s attention. Further, although the order concededly authorizes the Deputy Chief Engineer to accept the final estimate, nowhere in .said order is he authorized to reject the .same. However, the provisions of article 10 of the Public Works specifications are very specific in reserving to the Superintendent of Public Works the right to reject the whole or any portion thereof. The importance of this fact cannot be overemphasized. The time limita
The notice of intention to file a claim having been filed within six months of the forwarding of the final check, and the claim having been filed within two years thereof, the court finds such filing to be timely. Accordingly, the motion is denied.