D.A. Elia Constr. Corp. v New York State Thruway Auth.
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D.A. Elia Constr. Corp. v New York State Thruway Auth. 2000 NY Slip Op 30008(U) June 12, 2000 Court of Claims Docket Number: 87413 Judge: Thomas J. McNamara Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. I. [* 1] 8 Decision and Order of Justice Thomas J. McNamara. Dated June 12, 2000 and Y:aled July 6, 2000. STATE OF NEW YORK COURT OF CLAIMS 0. A. ELIA CONSTRUCTION CORP., Claimant, DECISION -vNEW YORK STATE THRUWAY AUTHORITY, Claim No. 87413 .. r------==~=~1~c~~~.~~---.· Defendant I .. . . I!....~. J 111.-s-;;;l I BEFORE: HON. THOMAS J. MCNAMARA Judge of the Court of Claims APPEARANCES: For Claimant: Damon and Morey, Esqs. (William F. Savino, Esq. and Brian 0. Gwitt, Esq., of counsel} For Defendant: Hon. Eliot Spitzer, Attorney General (Arthur Patane, Esq., of counsel} This claim arises out of a cont.~ct between the parties for repair of deteriorated structural concrete on fcllr piers of the Castleon-on-Hudson bridge which forms part of the Berkshire spur of the New York State Thruway. The work was perfonned in 1991. C:iuses of action for breach of r.:>ntract, quantum meruit and unjust enrichment :ire alleged in the claim. E:ich c:iuse of action is ple:ided with respect to three distinct items of work in the contract; epoxy bonding compound. epoxy morur patching and change in the scop~ of the work of repairing the deteriorJt~d concr~te. . [* 2] 9 Decision and Order of Justice Thomas J. McNamara, Dated June 12, 2000 and Filed July 6, 2000. Claim No. 87413 Page 2 The essence of the work involved removing deteriorated areas of col'lcrete from the columns, cap beams, struts and plinths of the fom piers and filling the voids with newly poured concrete. EPOXY BONDING COMPOUND The epoxy bonding compound was to be applied to the surface of the existing concrete, after the deteriorated concrete v.-as removed, to provide a bond with the newly poured concrete patch. The contract provided that the compound was to be applied such that the surfaces were coated with a one sixty-founh of an inch film t&'iickn:ss. Because measuring such a thickness is impractical, the application was to be considered acceptable ifit appeared wet to visual observation. The contractor was then to be paid a unit price for each gallon of the compound incorporated into the work. Claimant maintains that it v.-as not paid for all of the compound used on the job because the defendant had unilaterally determined that it would pay for the item at the rate of 50 square feet per gallon rather than by the method set forth in the contracL Although Claimant correctly points out that the resident engineer did not ha,·e authority to alter the terms of the contract, i.e. change the method of payment for applying the compound. the contract provides that the contractor has the burden of proving tluu it "vas not paid for each gallon of epoxy ..incorporated into the work". The proof offered presents several obstacles to reaching a detennination that Claimant has met that burden. Claimant was paid for 491.89 gallons of epoxy bonding compound as determined by the - resident emzineer. Claimant contends that it should have been paid for all 1.00 l 1?allons used less 5% - for Ylaste. The calculation of the number of gallons for which Claimant contends it should be p;:iid is based on testimony by Daniel A. Elia, a vice president of the Claim:mt corporation. th:it the [* 3] !U Decision and Order of Justice Thomas J. McNamara. Dated June 12. 2000 and Filed July 6, 2000. Claim No. 87413 Page 3 contractor applied the compound to an area until told to stop and that all opened cans of epoxy were used. Carl Niemann, the resident engineer on the project, testified that he interpreted '"incorporated into the work" to mean applied in the proper manner and thickness to the work surface. He also testified that Charlie Sta!ner, the superintendent for Claimant on the project, performed some tests and determined that the compound could properly be applied at a_~t~ ~f 50 sqU&lre feet per gallon. He and Mr. Stainer then agreed to use 50 sctuare feet per gallon as the measure for incorporating the compound into the work in accordance with the contract standard. In addition. Mr. Niemann testified that there were large amounts of waste from such problems as mixing more of the compound th~ could be used within frle appropriate application time, having to re-pour failed patches (an item for which the contractor was not compensated) and applying more of the compound than \\'&lS required. \\'hile Mr. Niemann was on the site on an almost daily basis, Mr. Elia was only at the job site five or six times making the latter·s testimony regarding application of the epoxy and waste weak by comparison. In ~ddition, Mr. Elia did not offer a basis for how the figure of 5% for waste was determined. The proof that a certain number of gallons of the compound \Vere deli\'ered to the site. that the contractor applied the compound to an area until told to stop and that all opened car.s of epoxy were used has not persuaded the court that additional gallons of the compound were "incorporated into the work". Furthermo1e, there is nothing in the contract to prohibit the resident engineer and superintendent from agreeing tha! the compound could be applied to.contract standards on a 50 square foot per gallon basis. Such an agreement does not viclate the contract prohibition - - - - a2ainst the resident en2ineer makine unilateral chan!!.es in the terms of the contract. Rather. it . recognizes that the contract standard for proper applicaticn could be achieved ac that r.ne and [* 4] .&..&. Decision and Order of Justice Thomas J. M~amw-~ Dated June 12, 2000 and Filed .July 6, 2000. Claim No. 8i413 Page 4 establishes that the amount of material incorporated into the work was meac;ured using the square foot method. The breach of contract claim for the epo>..-y bonding compound is, therefore, dismissed. EPOXY MORTAR PATCHING This item in the contract involved the application of a product known as Aquaseal gel :o underwater areas of the pier footings. According to Claimant, the item was deleted from the contract by Defendant after the project was begun because the product, A-quaseal, was not suitable for the intended purpose. Under a clause in the contract, Defendant had the right to tenninate any portion of the contract. In the event of tennination, however. the contractor was to be reimbursed for organizing the work and moving equipment to and from the job where ·he volume of work w01s too small to compensate the contractor for such exp;;nses under the contract unit prices. Claimant maintains that it incurred expenses associated \\ith this item before the item '"as tenninated and that it was not paid for any work under the item. Claimant seeks reimbursement for the cost of organizing the work and moving equipment to and from the job and for the costs of returning unused materials to the· supplier. Defendant concedes that it \\'as detennined that Aquaseal \\"as not proper for applic:uion but only on a ponion of the anticipated work. i.e. at Pier 13, and that the contnictor was excused from that work. However. Defendant maintains that there were appropri:ne uses for the material in other areas of the project and that the contractor misapplied it in attempting some of those applications and then requested relief from the item. According to Defendant, the item w:1s deleted from tl,e contract based upon the request by the contractor. The testimony by Mr. Elia with respect to this item implies th:it the item w:is deleted strictly because the material \,_·as :iot appropriate for the intendl!d use. However. Cl:iim:mt does not dir~ctly [* 5] 12 Declqjon and Order of Justice Thomas J. McNamara, Dated June 12, 2000 and Filed July 6, 2000. Page 5 Claim No. 8i413 refute the testimony by Mr. Niemann that there were other appropriate uses for the product. Mr. Niemann testified that it was detennined that the use of Aquaseal gel was not appropriate for the work at Pier 13 but was S'.!i:able for work at Pier 12 and Pier 11. According to Mr. Niemann, the contractor did work at Pier 12 but misapplied the product and was not paid for the work. Thereafter, Mr. Niemann testified, the contractor asked to be excused from the remaining work and the request led to the item being deleted from the contract. Mr. Niemann's testimony in this respect was credible as he had specific recollections of being able to peel the Aquaseal gel off a pier where it had been misapplied and of seeing cans of the material being oum! in a fire in an attempt to heat the product to a temperature appropriate for application. In addition, he recalled that the contractor's request for relief was granted e\·en though he felt at the time t:lat there \\ilS still good money to be made on the item. According to Mr. Niemann, the item had been bid at a cost that involved using divers to apply it and when the contractor requested relief there was still work to be done which would allow for simply w;iding out to the pier and applying the product. Claimant no doubt incUITed expenses in preparing to perform this work and was not reimbursed for those costs. However, the evidence offered will not suppon an award for the damages claimed. Mr. Niemann·s testimony that the product could have been used for work at Pier 11 and Pier 12, despite its unsuitability for the work at Pier 13, and his testimony that the contr:lctor requested relief from the item \-..ith that work undone undermines the argument that the contractor is entitled to reimbu."sement under the iennination clause of the contract. The clause pro\ides that when any ponion of the cor1tr.ict is tenninated for any of the re:isons set forth in the clause the contractor may be reimbursed in the manner claim~ her~. Howe\"e:. requests for relief by the [* 6] 13 Decision and Order of Justice Thomas J. McNamara, Dated June 12, 2000 and Filed July 6, 2000. Claim No. 87413 Page 6 contractor is not amcng t.'1-ie reasor.s stated and a fair reading of the provision shows that it was not intended to apply in instances where the termination ·was brought about by acts or omissions of the contractor. In addition, even if some of the expenses could be attributed to the unsuitability of the I product to the work at Pier 13, the:-e is no v.ay of detennining from the proof offered what amount I of the damages claimed might be attributed to that cause. Some or all of those expenses may be anributablc to the work where L~e product was misapplied. Any a.ward, therefore, \vould be purely speculative. Accordingly, the breach of conL-act claim related to the epoxy mor.ar patching work is d!sr:iissed. EXTR.\/ADDITIONAL \VORK The claim for ex:ra'additional work relates to the replacement of deteriorated St:-".:ctural concrete. This \vork was to be paid at a unit price (per cubic yard). Tr.e estim:ited are:?S of repair \Vere shov."Il on the bid d:;mings and had been determined, according to the ccntrac!. by field ir4Spection. The actual areas of repair were to be determined in t~e field by the E::gin~~r-in-Cha.rge (::-eside::! e:!gine~:) a."ld the work\\~ to be performed as ordered by the e::ginee:- :l::C ;::~ic _..;_,. &'. .. a~ t.~e bid •h• ·.a .... :'• .,;....., .a.Ca. a... .... 1~ .... •••· Claimant mair.tair.s that the work '"':as . . . . . .:::;~a:: c:-. :::e . ::g ·~~-==-----:::::.:a - . si~ifica..,tlv ~cx:Efie:i .... - s~:::-:.:::-:; -· . .. :::-:::e :: - . . . ·:-.:-.:c:-.. bv Defendant ;:1 t·.·:o ·.va·.-s. . . ·:::.! ~ se~c:...~:~ ;:::. . ::~::-. :·~: . a.5.: I [* 7] J.'I Decision and Order of Justice Thomas J. McNamara, Dated Jane 12, 2000 and Filed July 6. 2000. Claim No. 87413 Page 7 was advised of the change at a meeting on November 30, 1990 which was prior to the award of the contract. Claimant, therefore, was provided an opponunity to react to the change before the contract was made. Because the quadrant restriction ·was imposed before the contract was made, the change cannot be .considered a breach of the conuact or provide a basis for an award of dar.iaees. - The more significant problem, according to Claimant, was the change in the number and size of the repair areas. Mr. Elia testified that in preparing Claimant's. bid. .he performed an analvsis of .. . v1;hat a work activity would cost and that he relied on the bid drawings, which showed areas selected for repair, h: making calculations of costs for concrete repair. He testified that there were 170 rep3ir areas shov.n on the bid dra\\ings but 480 actual repair areas and the shapes of the actu3l repairs were radically differer.! from the largely rectangular repair areas sho\\n on the dra'-'<ings. According to Mr. Elia, the location and size of the repair areas were critical functions of estimating cost and whi l~ he expected some changes, he anticipated only reasonable modifications. ne field inspection of the piers had been Jone by sounding. hammering on the columns to determine areas of deterioratio~ and by visual inspection. \\'bile the "isual inspection was rccenL the . soundin2s had been done some five vears earlier. Mr. Elia testified that he did not believe it .was . going to be an on-the-job sounding operation because normal procedure is to sound the structure beforehand to estabiish repair areas. He also noted a provision in the standard specifications indicating that the pians had been prepared whh care and only reasonable modifications in the quantities of the work were anticipated. Testimony w&!S also cfferd ;,y Douglas ?:i:ssley. an e:igineer ....;th extensi,·e experie:ice in - corrosion e:1£i:i~:in£. th.at in an as?~ressiv~ cor.csive e:!viror.mei'lt such as ihis brid!.!e. i:isoe,tions - :~· - sou..'"lcir:g. a:e cr.ly good -- ~er about two yei-s ;:ind the:-_ bec:iuse of continuing . c~~eriOi:ition, th~ [* 8] ia Decision and Order of Justice Thomas J. McNamara, Dated June 12, 2000 and Filed July 6, 2000. Claim No. 87413 Page 8 results no longer present a complete picture of the problem. Visual inspections, according to Mr. Pressley, have limitations in that they do not reveal smaller areas of deterioration. Claimant argues that the contract drawings were not prepared with due care because the soundings were outdated and visual inspection was not adequate and maintains that the changes amounted to a qualitative change in the nature of th~ work. Defendant relies on exculpatory clauses in the contract which bar claims for the difference be~·een actual field conditions and those shown on the contract plans. The provision in the contract baning claims based on the difference between field conditions and those in the contract plans is not effective if the modifications amount to a qualitative c~nge in the nature of the work outside the contemplation of the contract as opposed to being a quantitative change CTriple Cities Construction Co. Inc .. v State ofNew York. 194 AD2d 103 7). Claimant relies on the number and size of the changes in the repair work, the provision in the conL-act about reasonable modifications and its expectation that the field inspection w:is done by sounding to show that more than quantitative changes were involved. However, the contract indicated that the contract dra\\ings showed ..[a]ll the major~ knO\'tn to exist at the time of contract preparation, [and] have beCn shown to indicate the aoproximate extent of deterioration to be repaired by the contractor.. (Exh. 1-A, p.2, Note No. 40, emphasis added). Warning was also given that the exact extent of reconsu::uction work cannot always be accurately determined prior to the commencement of work (Exh. 1-A, p.2, Note No.22). A further provision in the contract barred any claim by the contractor for work pertaining to rnodificatior.s as may be required due to any difference ~tween actual field conditior.s and those shewn by !he details and dimensio:is on the contract pl:ins (Exh. 1-A. p.2. '!'ote - No.8). In add:tior.... ~lf. ?ress!e\" tes:ifiec th:it in r::\·iewi~2 the cor.stmc:ion dr.iwin!!s r.e !ieted th:it ,,, . - [* 9] 16 Claim No. 87413 Decision and Order of Justice Thomas J. McNamara, Dated June 12, 2000 and Filed July 6, 2000. Page 9 there were no small areas of deterioration shown thus indicating that the field inspection was done visually rather than by hammer sounding. He also testified that the absence of small repair are:is would have led him to question the dra~ings. Thus the assumptions relied upon by Claimant in preparing _its bid, i.e. that the contract drawings were the product of a recent inspection done by sounding and that only minor modifications would be made, is not justified either by the language in - - - the contract or the contract drawin2S. The modifications, thoW?h ... ..in number, were reasonable laree considering the cautiona.ry language in the contract and the infonnation provided by the dra,,ings. The breach of contract claim for extra/additional work is, accordingly. dismissed. SUMMARY The breach of contract cause l - ~ction based upon the epoxy bonding compound is dismissed on the basis that Claimant failed to prove that it was not paid for the amount of compound incorporated into the work. The claim for bre:ich of contract based upon tht epoxy monar patch work is dismissed on the basis that the contractor requested relief from the item and bec:iusc the contractor ·was.not entitled to payment under the tennination cl:iusc in the contrac.t. The cause of action for breach of contract for extra/addition~ work is dismissed based on the exculpatory cl~uses in the contract and bccalisc Claimant failed to establish that the change in the number and sh:ipe of the repair areas amounted to a qualitative change in the work. Finally, because there was a contract [* 10] 17 Claim No. 87413 Decision and Order of Justice Thomas J. McNamara, Dated June 12, 2000 and F"decl July 6, 2000. Page 10 governing Cl3imanf s entitlement to payment for the work performed, recovery may only be had pursuant to the express contract and not under the implied or quasi-contract theories of quantum meruit or unjust enrichment <Panetta v Tonetti. 182 AD2d 977). Accordingly, all claims based upon quantum ~eruit and unjust enrichment are dismissed. LET JUDGMENT BE .ENTERED ACCORDINGLY. Saratoga Springs, New York June 12, 2000 SJ. MCNAMARA the Court of Claims
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