278 A.D. 999 | N.Y. App. Div. | 1951
—Cross appeals from a judgment of the Court of Claims in favor of claimant for $145,123.31, inclusive of damages and interest, in full settlement of its claim. The State appeals from the entire judgment as regards the allowance of the five items of the claim allowed as damages and interest on retained percentages, and claimant from the disallowance of two.items of its claim. The claim arises out of a contract entered into September 1, 1942, between claimant and the Long Island Rail Road Company as an agent of the State. It involved work in a large grade crossing elimination project and the improvement and construction of permanent highway facilities from Georgia Avenue to Van Wyek Boulevard and chiefly on Atlantic Avenue in the boroughs of Brooklyn and Queens. Claimant’s contract had principally to do with the improvement and construction of permanent highway facilities on Atlantic Avenue. Of the thirty-four items of the claim, twenty-seven were disposed of by negotiation and settlement and the other seven which were litigated and which are involved in this appeal, are referred to as follows: Schedule No. 1 — excavation claimed under contract terms as “ Trench ” at $3 per cubic yard. Schedule No. 2 — cost of rehandling excavated material due to the fault of the State’s agent. Schedule No. 12 — water mains and hydrants; contract price for installation of same on 6 inch instead of 8 inch mains claimed, due to mistake in specifications. Schedule No. 21 — cleaning sewers. Additional footage claimed over estimate claimed at contract rate. Schedule No. 33 — rental value of idle equipment claimed to have been rendered idle due to the fault of the State’s agent. Claimant’s appeal is from the dis-allowance of schedules Nos. 3 and 28 of its claim. The former item was for the installation of brick masonry instead of concrete in the construction of certain receiving basins and inlets in the borough of Queens, and the latter item is for claimant’s cost of removing bridge ties from a steel viaduct which was its obligation to raze and dispose of. Ample evidence sustains all the findings which support the award of damages on account of the aforesaid items of the claim which were allowed by the Court of Claims. The allowances on the two larger items, viz: for the rehandling of stock-piled material and the rental value of idle equipment, were based upon findings to the effect that those damages flowed from the fault and neglect of the State’s agent in unnecessarily and unreasonably obstructing and delaying the progress of claimant’s work under its contract. The questions of fact there involved were presented by voluminous proofs. Basically the fault stemmed from the fact that the State’s agent ordered claimant to go to work and on a large, involved and complicated project at a time and under circumstances when it knew or should reasonably have anticipated the unavailability of claimant’s work site, the deprivation of which principally accounted for the damages awarded. Added to this basic cause were others such as unreasonable delay on the part of the State’s agent in furnishing requested data for claimant’s work when the work site was available and the failure to reasonably co-ordinate with its work that of other