Appeal from a judgment of the Court of Claims (Lebous, J.), entered May 5, 2006, upon a decision of the court in favor of claimant.
Claimant and defendant entered into a contract for claimant to rehabilitate and resurface eight bridges along State Route 17 in Delaware County. After the final payments were made, claimant disputed defendant’s refusal to pay for certain items and commenced this action seeking additional compensation. Following trial, the Court of Claims awarded claimant a judgment of $174,730.39 plus interest. Defendant appeals.
Under the contract, defendant was required to pay claimant for the total number of tubular markers
Several contract subsections address tubular markers. The markers were bid on a per-unit basis, “measured as the number of tubular markers furnished and installed to the satisfaction of the Engineer.” The initial subsection concerning these markers directs that “[tjubular markers damaged by [claimant’s] operation or by traffic shall be replaced within 24 hours or as directed
The Court of Claims properly awarded claimant its actual cost of performing the deleted painting items. The original contract included items for cleaning, priming and painting all eight bridges. Due to statewide concerns about potential health hazards associated with lead paint being released into the air, defendant began researching new policies on lead paint removal from bridges. While research and investigation ensued, defendant deleted painting and paint-removal items from pending contracts, including the one at issue here. The parties agree that defendant had the right to delete these items. When defendant informed claimant of the new precautions necessary in the paint-removal process, claimant’s subcontractor withdrew. The parties did not reach an agreement on a new price for the paint-removal and painting items, so these items were performed as force account work. Accordingly, claimant was entitled to be paid under the force account provisions of the contract, including the addition of a 20% profit margin (see John B. Pike & Son v State of New York, 169 Misc 2d 1037, 1042 [1996]). Defendant cannot expect to pay the amount originally bid for items it deleted from the contract and then reintroduced as separate items.
The Court of Claims did not err in finding that claimant was entitled to be paid for repairing damaged concrete. The parties have different theories as to why the concrete on one bridge did not properly cure, causing damage which claimant was required to repair. Giving deference to the court’s credibility determinations (see Martin v State of New York, 39 AD3d 905, 907 [2007]; Butler v New York State Olympic Regional Dev. Auth., 307 AD2d 694, 695 [2003]), we cannot say that the court erred in accepting claimant’s theory that claimant complied with the contract specifications and the concrete did not cure properly as a result of the method insisted upon by defendant.
Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as awarded claimant $21,109.73 plus interest for additional costs related to cold weather protections, and, as so modified, affirmed.
A tubular marker is an orange plastic tube several feet high, adorned with reflective sheeting, which is used to temporarily reroute traffic during construction.
