Marcor Remediation Inc. v Broome County

[*1] Marcor Remediation Inc. v Broome County 2006 NY Slip Op 51394(U) [12 Misc 3d 1183(A)] Decided on July 18, 2006 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 18, 2006
Supreme Court, Broome County

Marcor Remediation Inc., Plaintiff,

against

Broome County, Defendant.



2003-0407



COUNSEL FOR PLAINTIFF: SHEATS & ASSOCIATES, P.C., BY: JASON N. BURNS, ESQ., OF COUNSEL, 9646 BREWERTON ROAD, PO BOX 820, BREWERTON, NY 13029

COUNSEL FOR DEFENDANT: BROOME COUNTY ATTORNEY'S OFFICE, BY: ROBERT G. BEHNKE, ESQ., EDWIN L. CRAWFORD CO. OFFICE BLDG., 44 HAWLEY STREET, P.O. BOX 1766, BINGHAMTON, NY 13902

Ferris D. Lebous, J.

Defendant Broome County (hereinafter the County) solicited bids for lead abatement to be performed at the former Broome County firing range located adjacent to Broome Community College in the Town of Dickinson, Broome County. Plaintiff submitted the low bid of $144,425 and the parties entered into a contract entitled the Former Broome County Firing Range Lead Abatement Project (hereinafter the contract). Throughout the course of the project, several change orders were issued extending the time for completion and ultimately increasing the contract price to $452,750. Plaintiff commenced this action seeking payment for performance of [*2]what it alleges is additional work outside of the contract. The County answered and thereafter, served an amended answer with counterclaims for breach of contract and counsel fees. Plaintiff replied and discovery was conducted. The County moves for summary judgment dismissing the complaint and for judgment on its counterclaims. Plaintiff opposes the motion and cross-moves for summary judgment determining liability on its breach of contract and/or quantum meriut claims.

The County argues that plaintiff failed to file a verified detailed notice of claim in strict compliance with Article VII D(1)(b) of the contract and, as such, the complaint should be dismissed.[FN1] Plaintiff asserts that because prior change orders were issued without a verified notice of claim, the County has waived such requirement. Plaintiff alleges that its claims for increase in the prevailing wage rate, additional engineering services and extra work were timely set forth in various correspondence as early as March 2002.

"[C]ompliance with the notice of claim provisions of a municipal contract constitutes a condition precedent to the commencement of an action for breach of contract which may only be avoided if the municipality acted in a manner that precluded the other party from complying" (Tug Hill Constr. v County of Broome, 270 AD2d 755, 756; see also, A.H.A. General Construction v New York City Housing Auth., 92 NY2d 20).

Initially, the contract provides that "[n]o action or proceeding shall lie or be maintained by [plaintiff] against the County upon any claim arising out of or based upon this agreement or any breach hereto * * * unless * * * [plainitff] shall have strictly complied with all requirements relating to the giving of notices and information with respect to such claim" (Article VII [D] [1] [b]). If plaintiff claims that any work it has been ordered to do or that it has or is about to perform is revised work, plaintiff shall, inter alia, file a verified, detailed statement with documentary evidence and the basis of the claim (Article IV [C] [1]; [2] [c]). Plaintiff's "failure to comply with [the notice of claim requirement] shall be deemed to be * * * a conclusive and binding determination on [its] part that said * * * work * * * does not involve revised work and is not contrary to the terms of and provisions of [this contract]; and * * * [a] waiver * * * of all claims for additional compensation or damages as a result of said * * * work" (Article IV [C] [3]). "No person has the power to waive the foregoing [notice of claim] provisions" (Article IV [C] [4]) and "[a]ll orders to [plaintiff] directing changes in the project, revisions within the scope of services * * * and payments representing increases or decreases in compensation due to changes [or] revisions * * * shall be made by the County through its duly authorized Board of Acquisition and Contract [hereinafter the BAC]" (Article IV [A]).

In order to recover for revised work, the contract clearly requires plaintiff to submit, inter alia, a verified, detailed statement of its claim. While the term "verified" is not defined within [*3]the contract documents, a common definition of the word is "to confirm or substantiate in law by oath" (Webster's Collegiate Dictionary, 10th edition, at 1312). Thus, a verification requires something more than a mere signature (see, e.g., CPLR 105 [u]; 3020 [a]). This court has thoroughly reviewed the contract documents, specifications and numerous items of correspondence exchanged between the parties. While plaintiff's submissions are signed by a representative, none of the documents were confirmed or substantiated under oath and, therefore, were not verified. Plaintiff has not produced any evidence that the County took some action to preclude plaintiff from complying with the requirement and was reminded on various occasions that it needed to obtain any change order from the BAC.

Contrary to plaintiff's alternative argument, the parties have not modified the contract by their conduct. It is undisputed that Patrick Hogan was the County's representative on the project. Plaintiff's Project Manager Dick Oliver submitted a letter dated October 1, 2002 requesting a change of scope for the loading, transportation and off-site disposal of approved hazardous waste (stones, rocks, grass, weeds, roots and tree stumps). Specifically, Oliver requested a price of $230/ton with a minimum 22 ton per load. Hogan apparently thought that the price was reasonable, but crossed out the minimum tonnage per load and indicated "quantities to be negotiated". Hogan signed the letter on October 8, 2002. Notwithstanding such documentation, Hogan clearly did not have authority to bind the County and issue a change order. The contract also prohibited estoppel or waiver on the part of the County thorough its employees or representatives (Article VII [E] [3] [b]; see, De Vincentis & Son Const. v City of Oneonta, 304 AD2d 1006, 1008 [the court excused the plaintiff's technical non-compliance with the notice of claim requirement because the contract did not contain a strict compliance or a non-waiver/non-estoppel provision]). As such, plaintiff could not rely upon and the County was not bound by Hogan's conduct. Plaintiff did not strictly comply with a condition precedent to maintaining this action and the contract was not modified to eliminate such condition. As a result, plaintiff's motion for summary judgment is denied and the complaint is dismissed.[FN2]

With respect to the County's counterclaim for breach of contract, the contract incorporated project specifications including the Scope of Services (section 01011-1) which anticipated that the project will be performed under a Voluntary Clean-Up Program (VCP). A VCP must be prepared in accordance with DEC requirements which specifically includes, at a minimum, a Remedial Action Plan (RAP). Plaintiff contracted with Blasland Bouck & Lee, Inc. which prepared an RAP (dated May 2001) for the project. Section 6 of the RAP entitled "Final Report" provided that such the final report would include the following eight subsections: P.E. Certification; Introduction; Pre-Construction activities; Excavation summary; Post-Excavation summary; Confirmation sample and Analytical data; Characterization, transportation and [*4]disposal summary and Health and safety summary. It is undisputed that plaintiff failed to provide a Final Report. Plaintiff's defense is that the County materially breached the contract by failing to pay plaintiff for the work at issue in this litigation and, therefore, relieved plaintiff of any further performance. Such defense is without merit. This court found that the disputed work was covered under the contract and plaintiff failed to comply with the procedure to obtain payment for extra work. As such, the County did not breach the contract and plaintiff was not relieved of its contractual obligations. The County's motion for summary judgment is granted on its counterclaim for engineering fees in the amount of $21,170.51.

The County also has a counterclaim for counsel fees. Although contractually obligated to proceed with its performance under the contract while awaiting the County's determination on any disputed matter (Article IV [C] [2] [e]), plaintiff instead chose to commence litigation. The County has prevailed on its motion to dismiss the complaint as well as obtaining judgment on its counterclaim for breach of contract. As a result, the County is entitled to counsel fees under Article XII of the contract. Counsel for the County avers that the County Attorney's Office is authorized to charge back its time to the respective County Department at a rate of $100 per hour. The County has submitted "time sheets" setting forth 212.20 hours of attorney time and 0.5 hours of paralegal time for a total of 212.70 hours. As such, the County is entitled to an award of counsel fees in the amount of $21,270.

In conclusion, the County's motion for summary judgment is granted and the complaint is dismissed. The County is awarded judgment on its counterclaims for breach of contract in the amount of $21,170.51 and counsel fees in the amount of $21,270. This constitutes the decision and order of the court. The mailing of a copy of this Decision and Order by this court shall not constitute notice of entry.

Dated: July 18, 2006

Binghamton, New York s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1: Should this court find that plaintiff's submissions are sufficient, the County contends that virtually all of plaintiff's claims are untimely. As set forth infra, at 4-5, such argument need not be addressed.

Footnote 2: Plaintiff's claim for quantum meriut is without merit. Recovery under quantum meriut is not available when there exists a valid contract concerning the disputed subject matter (C.O. Falter Constr. Corp. v City of Binghamton, 257 AD2d 865, 867). Removal of additional lead-contaminated material, regardless of its classification as organics rather than soil, is covered by the contract.