City of New York v Judlau Contr. Inc.
Annotate this CaseDecided on June 21, 2006
Supreme Court, New York County
City of New York, Plaintiff,
against
Judlau Contracting Inc., Defendant.
401511/04
Appearances:
For Plaintiff City of New York
Michael A. Cardozo, Esq.
Corporation Counsel of the City of New York
100 Church Street, Room 3-143
By: Yair S. Goldstein, Esq.
New York, New York 10007
(212) 788-1357
For Defendant Judlau Contracting Inc.
McElroy, Deutsch, Mulvaney & Carpenter, LLP
88 Pine Street, 24th Floor
By: Mark A. Rosen, Esq.
New York, New York 10005
(212) 483-9490
Michael D. Stallman, J.
Upon the foregoing papers, it is ordered that the motion for summary judgment by plaintiff City of New York is granted.
Plaintiff establishes a prima facie for summary judgment in its favor. Defendant was awarded a $9.2 million contract for the replacement of defective bridge structures citywide, Contract No. HBCRE95CR. Section H of the Special Provisions to the contract provides, in pertinent part, that "The Worker' Compensation portion of the labor cost is determined by the lesser of the actual rate paid by the Contractor or the industry average as given in the Manual Rates' as published periodically by the Workmen's Compensation Board." See Matthews Aff., Ex A at 394. An audit by the Department of Transportation's Office of the Auditor General revealed that defendant did not bill plaintiff the actual rates for workers' compensation that the defendant paid (plus 4.8% overhead and profit), resulting in an overcharge to the City of $163,525.74.
Defendant does not dispute the amount of the overcharge. Rather, defendant argues that, because of defendant's extensive efforts in negotiating and obtaining discounts of its workers' compensation insurance premiums, plaintiff should not be entitled to those discounts. Defendant asserts that these discounts did not relate to the manual charges and premiums computed by the State Insurance Fund. [*2]
However, these arguments are unavailing. The terms of the contract provision at issue are unambiguous. As plaintiff indicates, the contract makes no exception, even if discounts to the manual rate were obtained as a result of the contractor's efforts and expense.
Therefore, plaintiff is entitled to summary judgment in its favor in the amount of $163,525.74, with interest at the statutory rate. Plaintiff is entitled to interest as of the date of the breach of the contract (see CPLR 5001 [a]), which cannot be determined from the record. Apparently, defendant had sent plaintiff a series of invoices for its workers' compensation costs. Therefore, the dates from which interest shall be computed is referred to a Special Referee to hear and report, who may also recommend a single reasonable intermediate date. See CPLR 5001 (b). In lieu of the reference, the parties may also stipulate to the dates from which interest shall be calculated, in which case the date may be fixed by the Clerk of the Court. See CPLR 5001 (c).
Accordingly, it is hereby
ORDERED that plaintiff's motion for summary judgment is granted, and it is further
ORDERED that the issue of the dates from which interest is to be calculated upon the plaintiff's damages is referred to a Special Referee to hear and report with recommendations, except that, in the event of and upon the filing of a stipulation of the parties, as permitted by CPLR 4317, the Special Referee, or another person designated by the parties to serve as referee, shall determined the aforesaid issue; and it is further
ORDERED that this motion is held in abeyance pending the receipt of the report and recommendations of the Special Referee and a motion pursuant to CPLR 4403 or receipt of the determination of the Special Referee or the designated referee.
Dated: 6/21/06 s/
J.S.C.
Check one: FINAL DISPOSITION x NON-FINAL DISPOSITION
Check if appropriate: DO NOT POST X REFERENCE
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
