Kirchoff-Consigli Constr. Mgt., LLC v Dharmakaya, Inc.

Annotate this Case
Download PDF
Kirchoff-Consigli Constr. Mgt., LLC v Dharmakaya, Inc. 2018 NY Slip Op 33852(U) August 28, 2018 Supreme Court, Dutchess County Docket Number: 51167/2015 Judge: Maria G. Rosa Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. 1NDEX-NU.INDEX NO. 2015-51167 2013-51167 FILEd : DUTCHESS [*FILED: 1] DUTCHESS COUNTY CLERK COUNTY CLERK 09/11/2018 04:41 08/28/2018 02: 28 PM PM NYSCEF DOC. DOC. NO. NO. 159 154 NYSCEF RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 COURTOF SUPREME THE COUNTY STATE NEW YORK OF OF DUTCHESS Present: Hon. Maria G. Rosa Justice CONSTRUCTION KIRCHOFF-CONSIGLI MANAGEMENT, LLC, Plaintiff, AND DECISION ORDER -againstIndex DHARMAKAYA, No: 51167/2015 INC. Defendant. On April case. The project 6, 9 and plaintiff offered for offered Inc., Guernier. 2015 the former has been dismissed was held former on the project to reflect amended that SBBC of damages and decision by Associates, defendant, Dharmakaya, William witness, order October dated Stonemark d/b/a former Winters; an expert and Inc. contract and the operations Kleeck, The Mendel in this Michael Van Zimmer. Bart manager, as to defendant Brian Gerald Construction, issue executive, site superintendent, of its construction caption was trial of its testimony Shawnlee testimony action a bench Go1u,ano; subcontractor The this the Angelo manager, manager 10 of 2018 15, Construction Management. On July 2014 23, entered into services to be provided four between buildings residential on the buildings the Plaintiff site and of two the for contract The and Mahamudra buildings in evidence contract, Defendant. pre-construction both and construction subject was for construction during retreat and Exhibit construction in for to Defendant Cragsmoor, mediation 1, was management by Plaintiff Hermitage Buddhist assembly, as Plaintiff's space New York, with health two spa facilities. The given in initial Michael Winters, design development that he therefore and plumbing The by the budget 2014 March the project phase took designs arrangement, owner's over ("the According insufficient was four finding to the as of August executive, which Stonemark representative, at $11,789,272.00. design of for they start subcontractors of testimony 2014 the Construction of the were only project. to prepare the was Management, Plaintiff's first in the Mr. witness, schematic Winters mechanical, electrical MEPs"). in sum, was for cosÈs pYis AŸee plus insurance with a guaranteed and testified maximum [*FILED: 2] FILED : DUTCHESS COUNTY CLERK DUTCHESS COUNTY CLERK 09/11/2018 04:41 PM 08/28/2018 02:2 8 PM| INDEX NO. INDEX NO. 2015-51167 2015-51167 NYSCEF DOC. 154 NO. 159 NYSCEF DOC. NO. ("GMP"). price and RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 the could costs 6 from Plaintiff 2015) Plaintiff and working schedules and written with was and management the contract and GMP so for no sets forth those cause. as of the procedure date Throughout Exhibit 13 in applications employees laborers' entries time. approved "based time once 1 through but Associates, once pay neither and again, per week every entry by because observation certified and the data in because services. less than the cap includes and bid management and done total contract, fees applications Pay Labor costs e comprismg architect, paid. c tect the in was on [pay] pay for contract. but Mr. entry by and his reviewed of the Lothrop project. itself has Pay with spoke work those testimony. Winters application application...that time Cutsumpas during Pay paid. not direct by own to his Mr. litigation 5 (Plaintiff's the his contact) Plaintiff's in approved, executive California the in the 1 through according 4 were to use determined project month, under or committed party of contract compeñsation per laborers the by Winters were the per prevailing costs. 5 was of Winters, once the and the conveñiêñce of the payments numbered application for as established prior 30, order termiñating 10 used approved architect his and for Plaintiff's fee (also counsel a decision Article materials original March the contract of defendant's the contract t for of damages, 1 through by issued terminated work 2015, 23, court to the effective requirements superintendent and Mr. this to damages. paid. per phone was pre- these pre-construction an amendment March contractual paid. of weeks applications project for $30,000.00 paid coordination Defendant Michael pay engineering, preparing Construction to execute on 2017, pay by approved plaintiff which is entitled and nor only was 21, of 15.5 approved couple supposed to reasonable and 5 were application on on-site Section witness, to the for cap project manager's the minus approved first and $23,851.92. contract construction Defendant the and $13,200.00 execution, payment of the Plaintiffsubmitted 4 were Plaintiff's between applications Mendel their since cost entitled which evidence) 6 was the according the default drawings, work, of project subcontractor and of the charged total the orders, pre-construction architectural was was the Plaintiff and Per is also 1 through of plus the project application follow of termination, contract April contract, it is the services. phase the regarding costs the properly calculation In sum, and construction Pay for were On cause. established, of termination, insurance parties as change to date sum subcontractors. terminated to the been yet circumstances. plus set, the not Pursuant had the did which and the application Pay contract total reviewed were established. MEPs billed drawings services, cost was plaintiff 2.3.1.2 including total $30,000.00 the of for defendant GMP and been costs preparation Defendant termination that contract had stating. alleging holding Section work the contract, time, contract of the If the 2015, at review, supervision contract of the project has of the defendant the $45,277.00, review estimating though Even never design-build included subcontractors, was phase services, work the is represented pre-construction phase 4.1.2 Section pre-construction preparation for estimates. services with in paid after application, pay difference The construction engaging provided be a final was pre-construction The construction to was time, insurance. which GMP the but estimated, at $12,388,310.63. 17, is $599,038.63. management to be established supposed to Defendant, which accordance was be reasonably (April For GMP The and Bart Each stated: progressed [*FILED: 3] FILED: DUTCHESS COUNTY CLERK DUTCHESS COUNTY CLERK 09/11/2018 04:41 08/28/2018 02:2 8 PM PNj INDEX NO. INDEX NO. 2015-51167 2015-51167 NYSCEF DOC. NO. NO. 159 154 NYSCEF DOC. point to the indicated...the entitled [is] that RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 in the event for termination. Plaintiff to that limits Plaintiff's of the contract to addition computation and 2.3.1.2 of the costs Per $154,677.25, electrical Section the sum and it is entitled Plaintiff contract. that to The also seeks the Mr. Winters Since 5 were of what was Defendant's pursuant of pay to the this means demanded for remaining total of $1,190,524.38. proposed for and in their The draft to to date internal oftermination. oppose or claims $115,399.07. 14.4.2 the 14.4.2 Section these Plaintiff work in ("SDI") manager's not to Section "button-up" application payment Section categories insurance 10.1.3.2 the of The $2,438,309.24. does of per orders to what credits, to this paid already of 6, as stated. the move site, of the contract. The grand of $381,401.85 that Defendant's subcontractors are both of 10 2017 pay applications 1 through provided those services claims 6 for is entitled. different of law. herein, approved already for 4 plus sums in excess discussed. application offered 1 through applications application pay conclusions 21, as otherwise pay Plaintiff's Defendant plus 3 3 against of pay if any, and since as hereinafter portion litigation of fact for denied. denied $208,277.70 April Except contract also what of and convenience, of are 5 for order 5, $208,277.70. include findings cost Per four to construction Section termination and architect interest parties with has breach Defendant's application summarizedaspay those Defendant to plaintiff for cause, application questions as ofthe pursuant in pay included decision its that 6 plus the 7. date $1,166,604.85. in pay by 5 and after purchase defendant in without damages contract applications Defendant determined was claims The from court are credits per $35,932.51 work and $35,932.51 is therefore due did contracts of costs. of default Defendant plus 4.5% of totaling Plaintiff all of Plaintiff approved, owes that Plaintiff this termination fee to phase non-labor total a it is entitled Plaintiff, to $2,564,423.82 costs finalize costs balance the total management testified and is $2,715,755.40. claims According grand claims to services work were $72,435.00, to Plaintiff 5.1.1.1(c) post-termination post-termination and be brings a construction of the premises, total Section $37,897.88. of 4 through $16,510.00 totaled subcontractors' ("MEPs") it is entitled claims period that during There for $1,900,446.99 2.3.1.2 management cost 11, 2014. laborers $310,750.00, costs costs plumbing Per of ("CMI") numbers, administration the Exhibits on August 10.1.2 Section the construction as Plaintiff's Section in incurred of $13,200.00. is includes a notice of $30,000.00 amount. project seeks above which began phase time Plaintiff of sum referenced for provides is to be equitably receipt in the to that claim $13,200.00 are in evidence Plaintiff of $28,506.70. which convenience is also contractor contract plaintiff services management the ofthe the to services Plaintiff's for subcontractors and 5.1.1.1(b) insurance off for and project and for construction invoices Mechanical, $30,000.00 documents contract, supporting for a GMP, which phase contract...and 10.1.2 prior phase contract dispute 12, 2014 July the the of the to Plaintiff on termination supporting pre-construction 4.1 not of performed pre-construction does and to based charges with for the with Section establishment the services for Section payment 1, 2014 to damages Defendant March In seeks because limits is in accordance 13 in evidence). phase compensation $23,851.92. between prior pre-construction cap work Exhibit a termination of compensated agreeing of the quality to payment."(Plaintiff's $982,246.68 Plaintiff's 6 for is due claim numbers In consideration trial during of may for $982,246.68 all a than of the [*{FILED 4] : DUTCHESS DUTCHESS COUNTY FILED: COUNTY CLERK 09/11/2018 04:41 PM CLERK 08/28/2018 02: 28 PM| INDEX NO. INDEX NO. 2015-51167 2015-51167 NYSCEF DOC. NO. NO. 159 154 NYSCEF DOC. numbers finds RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 submitted most in accordance in their out down work its claimed and change general binders costs into individual that the total are only for construction addition costs subcontractors, and change with to the phase total plaintiff's subcontractors which leave counsel did as everything contains some Even break not subcontractor actually of of a mix the are costs so, Defendant binders the agrees in evidence submitted this to AJS sum paid claims also it to subcontractors in from deducted direct made 76 Exhibit $1,167,748.70 when payments evidence to containing as follows: Masonry Masonry Protection to Calculated Fire $30,475.00 to Comalli Group, $26,640.60 to Elite $79,660.00 to Family and Plumbing Danz Heating LLC Mechanical to Rochester Structural to Shawnlee Construction, Foundation LLC 1 $464,638.82 pay application 2 $318,022.23 pay application 3 $198,297.68 pay application 4 $186,789.97 (not P.C. Surveying, that defendant by plaintiff) credited (not Waterproofmg 4, it is undisputed application credited (not Waterproofing Foundation 1 through Land LLC $28,892.00 to Tri-State and Engineering $41,799.00 to Tri-State Inc. Company, Inc. to Mercurio-Norton-Tarolli applications paid of $1,518,006.70 Defendant's was Defendant services, a balance Defendant $8,759.25 pay paid plaintiff) by credited by plaintiff) for $1,167,748.70. Approved approved Defendant's are not. 6 and be may as the prior presented Although many pre-construction would $489,256.66. to AJS $14,110.81 total which costs. application $2,715,755.40. shows $6,945.25 of for totaling $6,975.00 a total in pay which of demand $45,000.00 for order as format conditions, and costs or subcontractors same court the and 2 - 9 Plaintiff general those are familiar, parties $30,000.00 services $200,000.00 pay the presented documentation For intermingled internal amounts plaintiff's supporting instead in the Exhibits or into items numbers as Defendant's Further, 6 was as Plaintiff's coded are the counterclaim contract. application pay these testimony, Defendant's different. slightly In subject non-labor codes dollar of the cost but the and in evidence categories, laborers, with and claim although cost conditions, connected terms the findings, in the order administration, Plaintiff's with proposed applications, pay evidence documentary reflect accurately considered points in the but to credit not paid $1,376,026.40. of $30,000.00 was pay application Plaintiff as the cap 5 in the agrees for with pre-construction 4 4 of 10 sum all of of $208,277.70 the phase above services. which plus brings the acknowledges Plaintiffalso agrees [*FILED: 5] DUTCHESS COUNTY CLERK 09/11/2018 04:41 PM FILED COUNTY CLERK : DUTCHESS 08/28/2018 02:28 PM| INDEX NO. 2015-51167 INDEX 2015-51167 NO. NYSCEF DOC. NO. 159 NYSCEF 154 DOC. NO. with all work but RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 $45,000.00 after to AJS effective date credited with at bill is difference (Defendant's for costs payments credit of the at trial are not includes 57) costs that is for was in evidence, which the is post the should $489,256.91 be minus subcontractors. Therefore, $62,855.06 billed. billed costs were that for 76 Defendant Therefore, subcontractors, was The billed total is seeking marked and per payments The but Defendant by less total $1,166,604.85. to Defendant rejected costs $2,511.164.90. was Plaintiff but claims Exhibit 4/1/15" Since $381,401.85 difference, what Offset work. to total The conditions Costs with is $1,343,416.20 Exhibit general to defendant's Plaintiff's Defendant $1,520,117.97. The $21,590.00 of plaintiff since Masonry Rental "Agreed direct to a further trial $1,167,748.70. for in only to AJS Pursuant termination credited claimed Plaintiff's testimony was $444,256.91 is entitled paid termination. Defendant's Plaintiff Defendant defendant Plaintiff's Masonry of $45,000.00. final which $45,000.00 performed removed the paid was Further, the "not approved". from a prior pay application. Pursuant and on-site only acknowledged Mendel Mr. for Mr. its expert argued that Mr. Again, part off-site of the costs were Winters was administrative example, Wacholder. work performing in California was pay work some Mitchell as by Winters However, though for included, of work Mr. work. even as well personnel Plaintiff's for the that there the project. " months We'll of promise to that review agreed limit that that Plaintiff they the were What for Mr. in the home spoke with and to agree Exhibit of 10 conditions not 22, email is the was "I from Mr. would sum be of as opposed to in pay dollars Mr. project Winters stood and complete Germano). which to date zero am aware date, contract this for total $12,388,310.63 21% of the job Defendant period" zero it is commonplace cap. the the and with of the where to beyond Defendant receive Even at 74% at a later that of the to 6. was this. "this Defendant on-site is pursuant dispute conditions for were $640,190.00. twelfth as to to date about 5 and than entitled was charged 13 showing application is enforceable 5 be be percentages did one concerned only the general that Germano sum general Plaintiff be more should contract arguably on could Exhibit in pay Mr. 2015, limit Plaintiff arguing discussed agreeing later" it (Plaintiff's is unenforceable. cap. is a contractual conditions which because between monthly, a cap Plaintiff's would of January, Both approved in is what $2,620,303.43, That not relate was aggregate labor 6 indicates was items it was if the acknowledged to date and done paid general month there contract, as demonstrated where application into time" work not seven both completed type which off-site, "buyout" work. for 13 in evidence) and $640,190.00. to be apportioned 4 for Mendel the The testified sought application P.M. that that conditions, and times $405,120.77 6 of contract. Winters later termination that for agreed conditions pay aware of the Plaintiff reconsidered general he was payment general share that dollars. and design were On cross-examination it. Defendant by Exhibit office, regarding Article of the proportionate months to 5.1.1.2 argues home approved given was (Plaintiff's personnel stated only Mendel weekly. construction Section contract or Mr. approval in the Kierman he approved Mendel of the approved acknowledged and Since explicit aware, Pursuant Mr. the no Danielle by office owner that as all were work 6.2.1 unless 1 - 5 were applications done, to Section does the and overall. that the six of the total to seven excess However, not say that [*FILED: 6] FILED : DUTCHESS CLERK COUNTY DUTCHESS COUNTY CLERK 09/11/2018 04:41 PM 08/28/2018 02:2 PM 8 INDEX NO. INDEX NO. 2015-51167 2015-51167 NYSCEF DOC. 154 NO. 159 NYSCEF DOC. NO. upon termination intended the about In and to practice Defendant general conditions of Defendant. the general the basis To the construction includes or the way to know been covered approach how much by the is fair. The per disagrees. There in the included in the equally a monthly with the pay general conditions Per materials to building Coon billed argues Guernier and quote and billing little, or none, plaintiff defendant Mr. Mendel but testified of 30% approximately of Coon and Coon the actual is entitled credits, argues excavation to a credit either which of that of Coon done date court herein were There contract and 5 were of $405,120.77 sum credits that is apportioned Winters' Mr. the certain of This 1 through full to this is 80% of its been billed Mr. the Coon with this this billing including sum due for the Ips agamst of Mr. the for backfill excavation Pay was The and application Defendant court billed agrees. sufficient work. $315,000.00, $137,000.00. work, it did work comprises backfill and should very billed charges to benefit Therefore proof Coon's A.W. 6 includes loaded front-end of approved excavation Mendel, ot offered Coon's and reviewed even Therefore, fee budgeted the ("Coon"). Inc. Sons, done. was budgeted originally and projected convenience, of $152,257.00. Defendpt $9,400.00 own testimony. for is a termination work completed to had Coon 80% Mendel $315,000.00 says Plaintiff of A.W. allotted at a value or of of agreed by A.W. According Defendant this or credible the is entitled 80% only that although $99,743.00. $17,500.00 have is consistent since work which work. job. the that to the contract. applications pay Guernier, evidence, acknowledged that beginning parties The backfill/foundation in should $300,400.00. totaling and 60 backfill the 80% of it or $252,000.00 for and $252,000.00 that below. William witness, Exhibit Defendant and be the finds pro-rata credited incurred found Moreover, court to have the $26,818.61. excavation defendant's though above was second Defendant's According Mr. for for defendant 6 as set forth is court at total in the is no should that $303,893.31. what are The the Therefore, 6 is due, over incurred termination. above. application logic. necessarily plaintiff's by or specific there that $520,960.00 on the during phase, services is provided what collect as to concludes months be paid and $405,120.77 testify construction of the seven conditions defies not further services general the work cited for bound are the the the of the not to bill conditions did accepted accounting against pre-construction be one-twelfth this fact, more up until application $137,000.00 that In Winters were over should and general is amounts steady allowed argues as Defendant month in it an accurate was during for pre-construction parties states language to pay against though that months with respect per that Mr. Therefore, $43,413.33 basis. was since billed would The billed services amount proof contract the approved so no there that improperly pro-rata is on throughout plaintiff also Defendant that Plaintiff by Plaintiff that services concludes $405,120.77. that as necessary. fee os $30,000.00. month, nothing testimony fix incurred there reached. testimony is not Plaintiff that while that never incurred be testified noted was claim testified on pre-construction spent costs necessarily Winters He Guernier's $405,120.77 pre-construction Defendant time termination, Mr. as quickly it phase. employees actually contrary, conditions that and Winters GMP. $640,190.00 condition the that Mr. the William general claims of of expert that time maximum the Defendant's industry are proportionate. fees it at the discuss rate", of a project, amount conditions would "burn the addition construction course general paid to get discussions by RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 Plaintiff only pay for Defendant to warrant further [*FILED: 7] |FILED f DUTCHESS DUTCHESS COUNTY CLERK COUNTY CLERK 09/11/2018 04:41 PM 08/28/2018 02:28 PN| INDEX NO. INDEX NO. 2015-51167 2015-51167 NYSCEF DOC. NO. NO. 159 154 NYSCEF DOC. As to the to certain in RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 change the credits, Defendant's $278,839.67, reduction of Plaintiff by $103,839.67. for soil was the recommended of the proof Defendant originally he prepared when the charges with 6. Mr. that is not consent in not was claim The labor breakdown in pay incurred costs costs after Plaintiff claims of termination date of the Plaintiff termination continued pay proposal to by Plaintiff charged earliest of the Defendant because the and would $1,436,700.00, for argues Shawnlee an from incre Plaintiff in pay that bid apphcation f March sum, had after pay Mendel Mr. their as consent applications. Defendant do not claims support labor The this. breakdown days Mr. almost proportionate 346,080.00. 6, it would sum reflects 2015 23, then to the notice effective acknowledged that 2015. application $350,000.00 That 6 Defendant less is, the Defendant be fair is the This March from in pay sum. condition to defendant, Winters 30, general 2015. 30, to the seven March for according of $358,742.00 was in fact, which claim Pursuant work. done se early discussed, previously 14, 2014. on This 2015. 30, be the Manager "unnecessary records Plaintiff's effective original pay along 2014. 17, date. work to put into Project approved labor 3, the 2 and post-termination for that charges became five November with March contract, its that first certain that charges 4, back and practice for became finds decided [the As off-site, of the be deducted after done being parties' applications after costs to remove that regard. $8,620.00 November should Defendant the this by virtue 2 ends date conduct $211,048.00 to application 14.4.2 charging accepted $1,090,620.00 $358,742.00 only billed in was essence, payment incurred as to Shawnlee, Finally, should to have work court credited as not sufficiently proven. Defendant off-site" of $45,723.00 work warrants a credit proof in writing double condition Section per In termination plaintiff's in general that work. $30,775.00 claims billed Plaintiff knew in both pay as its unapproved took claim was acknowledged removed that though change is warranted. of Plaintiff, previously Defendant's is not agreed application pay Germano's 6 "even insufficient but it was twice 3 has Defendant conduct for application that that billed inadvertently and was defendant in their only As to defendant's of $13,600.00 there approved including application value." overall his from this pipe change The Winters president the for of $10,320.00 Mr. by seeks to a four the and to a sought also zero pay Plaintiff since sum system Plaintiff. by Defendant. Mr. putting by agreed Plaintiff Plaintiff Plaintiff, by parties of the pipe a reduction Burns, Gregory sought the it should management finds by that a two says of $50,000.00 remove, pay personnel and and to into a credit because obtained participated reflected of warrant poor to as set forth evidence). reviewed therefore approved acknowledged "unapproved was and agreed charges 134% of a result not were in entitlement agreed sum instead from change Defendant change 6 he and had the to a credit application Winters credited was credible Germano unbilled line to item] superintendence" but entitled Mr. Plaintiff previously claims is also pay that application regard for sought and in this finds it at $30,000.00 13 regarding was the court Exhibit systems. conditions the capping the and proof Therefore, addition, accommodate design Plaintiff by Defendant's relocation, to winter $175,000.00. In mechanical original for (Defendant's slabs lowering of evidence $85,723.19. design both in as to Defendant's A cap as follows: is reduced for in the finds and $599,038.83, 13 $55,723.19 $10,320,00 because court of Exhibit which system orders to reduce than price argues the actual went that from of it to $211,048.00 the [*FILED: 8] (FILED : DUTCHESS DUTCHESS COUNTY CLERK COUNTY CLERK 09/11/2018 04:41 PM 08/28/2018 02: 28 PM INDEX NO. INDEX NO. 2015-51167 2015-51167 NYSCEF DOC. NO. 154 NO. 159 NYSCEF DOC. because for RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 that would BO plus Building able to use. that "value engineered", have from credible which discussed put whatever Mr. the Plaintiff did 17 reflect that contract not obtain Mr. Mendel 4 and Shawnlee's work. done actually It Shawnlee in the was were, contract for and defines for the best hired were on had Plaintiff get. (Plaintiff's to reduce discussed and seeking Defendant's sum objection. in scheduled this with after Per Further, value and litigation, billed an that evidence). the Shawnlee of number work. in to even meeting 35 Mr. Mendel of the included theadditional that subcontract from scope were a limit Shawnlee, Exhibit the project consented Mr. the into to use minutes in writing by Defendant on The 8, 2015 right they agreed they could and Winters to entering the which at trial hands that clear for only work used. actually from in fact, reasonable given work" of the prior Mr. being it was of testimony that by both that all Plaintiff's the is not based of the they approved adduced "cost price January further the approval testified Plaintiff Shawnlee materials performance proper Germano Moreover, a deduction issued Mr. Shawnlee, at trial However, throughout credible into further speculates changes the he testified though written and 5 which from (actually after Mendel project. subcontractors, was Defendant Defendant Mr. its Shawnlee acknowledged Defendant's was with adduced with the design were and be reached it was work, Shawnlee applications could While of further there from Plaintiff to of negotiating number scope Plaintiff's of It was that percentage the by budget. completed Defendant which amount. usable to the terminated been costs down Shawnlee approximate subcontract not that Shawnlee by is the were that at trial increased which ultimate back not offered responsibility both increased Plaintiff Mendel. $20,000.00. Shawnlee, pay had caused reasonable additional the that testimony with Mendel the done to the reduced words, agrees fabricated to 76% materials Plaintiff work materials compared manufactured in other frequently other of the of those estimate Shawnlee he would each reduce 90% the of the value original claims the the It would of the 75.91%) for be payment the credible the as the work." at trial testimony in the changes "costs scope of the and necessarily actually Approved costs that in work. costs Section 6.1.1 incurred are applications pay increased the by [PlaintiffJ of the part by of the "cost of work". The arguments fact and applications court and has proof of conclusions 5 and 6 less Pay plus equals minus considered presented by law. In the credits application pay the app 5 6 both sum, arguments parties the herein court and at trial fmds set forth proof and that as discussed as set forth Plaintiff decision proposed is entitled to and findings the total all of of pay paid for $208,277.70 $982,246.68 $1,190,524.38 $30,000.00 for $47,861.00 pre-construction for fixed $62,8535. for services Defendant pay minus this as follows: by minus in in their pre-construction application $30,000.00 subcontractors services 6 already paid billed in by the fee paid for directly by [*FILED: 9] FILED : DUTCHESS DUTCHESS COUNT CLERK COUNTY CLERK 09/11/2018 04:41 PM 08/28/2018 02 : 28 PM| INDEX NO. INDEX NO. 2015-51167 2015-51167 NYSCEF DOC. NO. NO. 159 154 NYSCEF DOC. RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 $21,590.00 minus Defendant for work termination not credited for general from have not for the minus $103,839.67 for winter minus $55,723.19 for soil minus $10,320.00 for slabs; for Mr. added sum 4.5% on is based The (SDI) and is also must discussed when must is based (that is $55,723.19 = $3,429.62. by 4.5% be reduced of costs plus $677,817.46 of the 4.5% by multiplied total by plus $23,071.81 contr is what and manager's $99,743.00 plus granted reductions $37,897.88 The or $7,690.60. which is Defendant $62,855.06). minus $7,690.60 fee manager's of $512,706.92 against minus is subcontractor's 1.5% $23,071.81. 1.5% after actua1 below construction credits equals 6; to Plaintiff. in the the $1,900,446.99 $10,320.00 minus and for previously incurred in the construction fee, (CMI) by Plaintiff sought be reduced which reduction concomitant insurance manager's on $2,715,755.40 and subcontractors' on based $228,641.25 $228,641.25 the $115,399.07 The $512,706.92 total $28,506.70 credited fee. $2,715,755.40 They CMI to reflect reduced construction 1.5% insurance herein. for in the fee, default be further must costs Defendant by not which 1e s s the reductions This cost; post-termination 2015; sum s due pay application to pay conditions 30, Thi Coon's time unrecoverable March $677,817.46. in A.W. Germano's general equals to conditions; but for which app added relocation; billed $30,775.00 pay been reduction $99,743.00 minus removed 6; minus $50,000.00 previously and prior Plaintiff's application minus costs Defendant by should to Defendant conditions rejected through done 1.5 x = $3,429.62 $643,625.43. it is hereby Therefore, ORDERED forth below 17, 2015. been due, V(D). to timely within rate statutory that of 9% Interest which Interest make sixty days from the is awarded is per 20 days the of entry date from post contract payment, shall Defendant the of this March May 7, 2015, date of may pay Exhibit enter 9 the decision of termination, is 7% per Plaintiff to Plaintiff pay the order. 23, 2015. 6 per in Plaintiff of pay sum seeks application Exhibit contract V(A)(2). the plus application Pay payment date C, Section of910 of $643,625.43 and application judgment sum Therefore, of $643,625.43 interest interest 6 is dated 6 would C, page at the April have 7 Section if Defendant with as set fails interest [*FILED: 10] FIL1i:D : DUTCHESS DUTCHESS COUNTY CLERK COUNTY CLERK 09/11/2018 04:41 PM 08/28/2018 02:28 PM INDEX NO. INDEX NO. 2015-51167 2015-51167 NYSCEF DOC. NO. 154 NO. 159 NYSCEF DOC. RECEIVED NYSCEF: 09/12/2018 RECEIVED NYSCEF: 08/28/2018 at 7% from running Plaintiff is entitled thereon. Beyond and order in this The Defendants responsible The Dated: for neither are its for not the counsel court fees to fees constitutes as and the with could The and decision Ingram, New Park 250 New York Pear & NY Pursuant to CPLR its of the Court. G SA, J.S.C. LLP Bertolotti, upon except entry, Suite 901 12207 to the of is party LLP Snyder, Street, Scanned entry, each Accordingly, Esq. Allen South party seek. 10177 J. Barriere, Albany, finds ENTER: & Carroll Gainen, NY Hinckley, 30 court as they the litigation. in this order to as much Avenue York, James seek. of post-decision party, prevailing execution have it is further and entitled of entry. date Esq. Banner, Yuzek, by the shall and submission the is not as they MARIA A. extent the , 2018 c2b Poughkeepsie, Robert that as practicable; be made incurred 9% from statutory counsel Plaintiff credits many costs to as soon discussed which at the lien mechanic's prevailed. has entitled own its and be extinguished counsel party foregoing August of shall although that applications case lien the of judgment to entry enforcement to that ORDERED that 7, 2015 May the E-File the when appeal only an appeal §5513, appellant that System of a copy the must as of right must of the judgment appellant be taken has or order served within a copy thirty 10 be taken of 10 days 10 within appealed of the judgment thereof. thirty from days and or order after written and service notice written by a of its notice

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.