Barrett Paving Materials, Inc. v County of Onondaga

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Barrett Paving Materials, Inc. v County of Onondaga 2020 NY Slip Op 34489(U) October 20, 2020 Supreme Court, Onondaga County Docket Number: 2017EF1235 Judge: Anthony J. Paris 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. [*FILED: 1] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 SUPREME COUNTY BARRETT COURT OF THE NEW YORK OF STATE OF ONONDAGA PAVING MATERIALS, INC., -vs- No: Index COUNTY OF ONONDAGA, COMPANY, INC. INTERNATIONAL, and & ORDER DECISION Plaintiff, BUFFALO 2017EF1235 DRILLING HONEYWELL INC., Defendants. APPEARANCES: FOR PLAINTIFF: COUCH Elizabeth FOR DEFENDANTS: L. ROBERT A. Benjamin M. For DURR, Yaus, For D. For J. of Esq. of Gumaer, of Esq., Buffalo Marzocchi, 1 of 18 Counsel Onondaga Counsel Drilling & GERMAIN, Defendant ATTORNEY SEGALLA Defendant GERMAIN John COUNTY County GOLDBERG Counsel of Callahan,Esq., Defendant Matthew LLP WHITE, Esq., Honeywell LLP of Counsel International, Inc. [*FILED: 2] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 J. PARIS, action This struck utility during Plaintiff Barrett contract with Lakeview 690. existing and subject project, pit Plaintiff force main. sanitary that the contractor the lake cleanup main. The drawings the in 2015 notes in is shall team of existence to the the be of also bid for project both to Honeywell subsequent the Barrett contract, may for paying contract was the 2 2 of 18 in prepared utilities and included all contractor's by the including sign overhead Inc., 2015 "utilities" entitled coordinate International, it for 7 off of which utilities County Exit the to a utilities. the of responsible that the drawings proximity state and underground contract Pursuant into "Onondaga enlarge responsible solely structure. entered the to main force replacement underground underground drawings the all was for including sign. sign project, project a wider and locate contract main force on required Barrett's to of The contractor protecting work. excavations was with structure repair The notified work road locating any overhead October inch 30 an Improvements" with performing prime of Highway sign the underground foundation the Onondaga overhead with test sole of County Ancillary tasked conflict ten the Paving, the for a damaged of out drilling Amphitheater Route was arises state structures drilling the C&S subject that a and note operations owner responsibility of the with force to take [*FILED: 3] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 precautions necessary to Prior sewer 1978 project location and of was scale of well as surface current the force the area of 6' between of pit any were force and 8', of the to dug three included in The or at discussed attended by not main the the test the pits alia, site the a former location. The conditions had changed C&S made 15' and the as Barrett, Honeywell, to approximately 1978 by and Engineering and sewer exact its Calculations located depth approximate county a with 17' below the test Three test 15' pit and no and test would pits pits dug The 17'. further to pits to first 10' between force test required The dug. were was be pit test and the determine 14', main was not were dug, although not been was and dug the as located ten to third a result test pits contract. force main and a pre-drilling representatives of skewed. be that second between certain Barrett provided operation. drilling main. was agent, would utilities. depicted main become County's the which inter determined the was was have of that of force underground the Honeywell C&S by because, could Barrett test owner, to The main. representatives location excavation, done force drawing in drilling any approximate the estimated damage drawing the the Honeywell, drawing to prevent the meeting of Barrett, fact that held on it had December County's the 3 3 of 18 agent, was located 1, 2015 C&S which Engineering, not raised was and [*FILED: 4] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 Honeywell. subcontracted Buffalo in Buffalo attendance with the made Drilling was area not water to main was the enter with Dig Safe. subject 15' located Barrett and Barrett costs denied County the filed Onondaga on and December All test the in in the to reimbursement repair and the project. any underground subject the of test determined work related project in the the of of the force semi-treated the force break. to County Buffalo #1, that the of force pit of amounts area had excavations. area the the repair on pit but enormous surface work remediation with subsequently the the on who main force the of Spring 2016. Onondaga for the Onondaga main. claim. commenced Plaintiff of for the the operation drilling, drilling was performed of to causing It below remainder with associated area. 17' to a claim submitted main Drilling in prior while 2015, force Paving the completed 9, Buffalo conflict involved inquiry excavation the not Safe registered struck was drilling potential any a Dig On December Drilling the of and was meeting perform advised not drilling the at to Barrett was Drilling facility main in Also Honeywell 26, three 2019, Defendants this action Inc. International, and the have Buffalo against matter has moved 4 4 of 18 in 2017. been for A scheduled summary the Drilling, Trial Note for judgment of County Issue was Trial. dismissal of [*FILED: 5] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 the RECEIVED NYSCEF: 10/20/2020 Complaint and Defendants no raised crosselaims. any For the reasons that met their prima facie legitimate issue v. of New Zuckerman COUNTY City contract had a contractual Plaintiff of both commence as the that breach it conditions had its to the the the to burden for summary opposition 557 these finds so NY2d motions. each that of and judgment, to as the defeat Plaintiff that judgment. summary (1980). force to force locate and alleges or the Plaintiff also claims that the its the test concedes and to repair depicting "directed" the pits that C&S agent, accurately that breach work repair utilities information for County Plaintiff and/or County, other the for payment underground the depth against While protect that and of main. drawings main. action denial subject location the of cause County's provide County were to be to and dug operation. drilling The not Court a single nevertheless failed location on duty it Engineering, the the 49 York, from Barrett by damages, any follow, in fact asserts sternming performed it of opposes OF ONONDAGA: Plaintiff of Plaintiff has County with contract met the examined the contract affecting the work its prima Plaintiff Plaintiff. and to be burden facie site done and and 5 5 of 18 agreed, was labor fully and by that establishing as informed materials part of the contract, regarding to be it all furnished, did [*FILED: 6] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 the including was information estimates of claim against officer or of existence secured records the of the Plaintiff the site nature and Plaintiff and location and all The contract orders had or to work the right to research and agreed also that or tests estimates, and plead made in that and that its and not from would it make no of representations any materials that required The made it satisfied test or pits as be to to same. modifications no that the encountered. the established has the or changes any to was regarding County relative "carefully likely misunderstanding any examined" had it investigations, subsurface writing. were modifications warranted own its further contract be and from that, of waived structures, County. represented plans of reasons by County agent Plaintiff County. the and investigation personal by of facilities underground to the of all change underground facilities. was It underground under from utilities the the the utilities contract and for contractor's prior Plaintiff's the to to performing The County avoid did of to verify the work. not them. damaging expense failure to responsibility breach any the repair or special the contract 6 6 of 18 verify The the exact was Plaintiff i.e. by declining responsible work of reinstallation conditions, locations the to resulting location pay for of the [*FILED: 7] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 of cost repairs required cannot and RECEIVED NYSCEF: 10/20/2020 to under be contract the had for compensation reveals v. that State for extra the Plaintiff to to protect Plaintiff work to The location information of the the force AD3d or plans the (4'" 511 at sole its that the Dept. duty to Plaintiff location drawings provide was any contractually 7 7 of 18 contract or supra. of or or fraud burden wholly utilities required and utilities. failed of of the place damaged contract the investigation, fraud allegations location If own its Mid- itself. 2014). of contract County the depicting the Indus., no the verify cost is upon rely made and and site additional a showing has documents to Dept. Mid-State Plaintiff bid (3d to absent had, guide 1255 conditions. repair main. recovery contract AD2d entitled primary contractor be may the no the 62 York, expressly Moreover, within is the 117 allegation under itself. New of Plaintiff the accurately was County falls State York, case, investigate and actually work, existing instant Plaintiff's other extra and misrepresentations, repairs whether intended as In v. such was Plaintiff (1976). New of parties misrepresentation upon 934 alleged the recovery Bros. detennining for Indus. which The main. for pay work extra NY2d 47 In State to Savin aff'd force underground specifications. 1978), no the to the provide force main information obligated or drawings is as to to irrelevant. the investigate and [*FILED: 8] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 obtain RECEIVED NYSCEF: 10/20/2020 information that itself. Plaintiff motion. It is main force drawings While clear that itself or and other Plaintiff the location not establish the responsibility without the the on (482 on the Dept. 17' 6' the Notably, surface first Barrett in and 8', area second as to the the to and subject the dig or test in to the Kenaidan of Corp. with force main. Barrett the County as Court are depth v. subject the allegations and County's Plaintiff before location the the directed evidence Constr. locate location such the identify to providing C&S, agent, event, any to for the its pits, test a the of the pits location first to and evidence of 17'. The test pit depth main was test a depth depth the the surface, second force that calculation the dug and to County. below potentially between County Barrett's approximately was the opposition duty depicting that in responsible accurately Barrett fact a contractual not and, of to does irrelevant of the of Erie, as test pits 4 2004). Despite pit was allegations, was issue had County depth those valid Plaintiff the contends and 756 no raised information reliance AD3d has in pit. fact of only test pit was dug to between located Barrett inexplicitly 17', any allegation the test pits 8 8 of 18 should is be that ultimately Since of main establishes first was force that irrelevant only only to as County under third to and 17' failed the the dug 10' 15' located 14". below to dig the the directed the [*FILED: 9] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 contract RECEIVED NYSCEF: 10/20/2020 Plaintiff the representations make can of officer any claim no agent or the against of County. the by County of reason Constr. Kenaidan any Corp., supra. Nor work with the that requiring for on C&S how deep to before the would constitute under be waived, changes were will allegations fact whether Based on mutual v. Allied here a waiver the by foregoing, are of are of is the and directed where and County Builders, Inc., insufficient to the provisions the County 84 of 9 9 of 18 executed AD3d the Onondaga's such contract evidence directives are modifications may parties the agreement the Dept. occurred for the See 2011). question legitimate motion and Plaintiff. (4* 1748 if and modifications by any the by written the establish of of Even where Barrett oral conduct responsible main. force oral against from the because and the was supported raised contract departure the to proceed provision contract Barrett not to notice the repair provision the found be only requested Inc. Plaintiff's about While indisputable Mechanical, of which fact of writing. project question modification in necessary drilling Barrett gave a waiver as be allegations contract. clearly act any the pits, oral the an for and legitimate a waiver demonstrates CNP an C&S that modifications begin test no Court, prohibited to the or main force dig claim project changes Barrett directed Barrett's construction any the locating would here. summary of [*FILED: 10] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 judgment is BUFFALO GRANTED. hereby DRILLING: Buffalo drilling it struck where work on the subject for Drilling subcontract against breach of that toward protecting any the flow-down Buffalo Drilling County of protecting assume Onondaga, any has underground in all its or that met its toward utilities that 17' to of toward the the Barrett Barrett that may 10 10 of 18 conflict the that Barrett and locating that establishing not require assumed locating the also drilling. of for its Onondaga of of Barrett with under Paving does responsibility Buffalo subcontract responsibility burden pit. Buffalo the that facie test County with prima Barrett first Drilling, and with ground the against Buffalo conflict with below action operation, drilling Barrett's may assuming including its perform to Paving connection alleges duties subcontract duties in assuming utilities Drilling provision all including underground Buffalo the County that further assume of Barrett of Plaintiff Drilling cause claims out area the indemnify arising project. the in a single to 15' located and Plaintiff agreed damage Buffalo assumed alleges Barrett, on was Barrett commenced Buffalo drill to contract. property work Drilling's requires Complaint after which Buffalo The with any main force directed Barrett Soon project. the with a subcontract had Drilling project. that toward the and Barrett was [*FILED: 11] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 obligated contractually pit excavations Buffalo This was and Drilling which to of any Barrett was would bring or included location of New Under which incorporate character Custom provisions subcontractor manner Millwork in v. the are of prime the work contract incorporated & subcontract the test efforts via out test to pit excavations on the appearance subcontract for test worksite. pit Buffalo Drilling scope of incorporation clauses by contract be 148 are into the AD3d unrelated subcontract. 11 of 18 by act subcontractor. (48" contract will scope, Dept. work Navillus the bind quality, Auburn 2017). of to contract. a subcontract the the of a construction to to the Nor the relating 1527 in excavator under in into provisions Schmidt, which reference performed an work clauses pole subcontract. as and location and the Buffalo's and involvement excavations into Barrett signs no had reference by to between overhead Drilling the by law, Schmidt prime not to the shaft to the contract as only and drill related York prime a subcontractor in Buffalo within not including Drilling's possessed utilities did such Barrett. incorporated obligations Barrett Buffalo items: work no undertook and work, placement. and legal any work. outlined two concrete efforts, utilities to work included and that with of main force exploratory prior scope Drilling location the the for remained The excavation paid performed responsibility Buffalo locate Any the Tile, Inc. v. Bovis [*FILED: 12] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 Lend RECEIVED NYSCEF: 10/20/2020 Lease LMB, damages the of outside clearly to caused the the that free Brown v. negligence v. Two Biltmore Exchange depth it on drilling not at given part failed and the for fault to of negligence. dispute locate to project. the Barrett. Buffalo and Barrett, The Barrett contentions to locate failed has has main no by General by agreement who contractor to Dept. issue Barrett, 12 12 of 18 of locate the test is indemnify. Auriemma 1989); fact including pits a task to subject to force a sufficient the commencing of degree as the location the main, some least to before in force subject at raised dig involvement established raised to force the an a general (1't obligated underground no was establishing barred agreement 129 apply 2011). Barrett had of of Only contractually Buffalo failure Dept. is enforcement AD2d main force burden Barrett subcontractor's 146 (1ª' that the the not subcontract. facie with the of the prima its would subcontract in negligence. his 1 was Barrett beyond is own Prtns., AD3d 82 Theatre, but Plaza met prohibits its the location subcontract its enforce may Here, main for in outlined also which §5-322.1 2010). the as work the in a promisee from main has provision Law indemnifying of Dept. (2d clause force Drilling indemnity Obligations the scope Buffalo 1299 flow-down the Therefore, to AD3d 74 Inc., its efforts was contractually on negligence lack complete allegations and as to of who the [*FILED: 13] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 directed RECEIVED NYSCEF: 10/20/2020 location the information as location of Plaintiff has even the to before evidence to the and Court. force main to is judgment unjust With (4* 1640 cost of the It force is lack would supported have on the by had that not negligence of accurate undisputed is motion Drilling's to verify to undisputed main was and the occurred, own it's part or for summary to some property calculated in v. Finger of is to seeking to located, dig its and that 13 13 of 18 Honeywell was test the pits force to the main for contractually the including the AD3d 151 Plaintiff has receive Racing, from recovery utilities, who cannot & Honeywell. to failed be implied a party wrongdoing Gaming underground Plaintiff for claim, the Lakes belonging location that indemnification degree Plaintiff Honeywell against negligence. implied the Here, the claims enrichment Divens 2017). repair to it incident the Buffalo foregoing, alleges regard doctrine. Dept. obligated main. the the that fact not are main, provide regard. that participated actually of identified a complete Complaint indemnification, benefit force the to a failure INTERNATIONAL: The itself the and GRANTED. hereby HONEYWELL pits subject the been in on Based test the Considering establish a question raise of location the failed of depth 30' depth was force at which ultimately the [*FILED: 14] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 struck and degree of RECEIVED NYSCEF: 10/20/2020 damaged at on wrongdoing indemnification. conduct irrelevant in Honeywell light of the In other recovered. NY3d to good as Honeywell property enriched, facts to at 2) conscience to Malone, An the & the a claim, v. to party Trading is must that 3) retain v. on the 511 allege it what Ltd unjustly NY3d 19 is is in rooted himself Rieder, and expense; negligence. claim Plaintiff the are Defendant enrich to Inc. or own against allowed to testimony enrichment Co., other relative Plaintiff's be Mandarin supra; in unjust not Plaintiff's permit conflict implied fact enrichment such plead of establishing Malone Georgia issues unjust shall to some establish facts entitled any facts. a person undisputed not identify support undisputed enriched; that 1) against sought to be 16 Wildenstein, (2011). Plaintiff's fail not adequately was is to entitled that Georgia 173 not another. order party and equity of do the Plaintiff part, undisputed the principle expense (2012). the on Because attempts is based equitable the its either Plaintiff at location. Plaintiff's Honeywell's the that a matter was which and of law enrichment claim because Honeywell was owner the was has unjust damaged submitted of the by subject force Plaintiff's evidence borders not enriched main and it was 14 14 of 18 it was Honeywell conduct. that at not made whole frivolous and Plaintiff's must expense. Honeywell's was by certainly Plaintiff's not [*FILED: 15] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 Under remediation. permit Plaintiff the recover to experienced no undisputed for law as own its this case would it be equitable to which Honeywell from wrongdoing not enrichment. Plaintiff's of of facts claim negligence owed Honeywell no legal against and duty Honeywell did also breach not fails as to duty any a matter the Plaintiff. Plaintiff's allegations a duty that of care to one-call Program Plaintiff contends mark the drawings that force excavation as faithfully perform main, was despite 753-4.5 once excavation is negligent having by in failed to an planned locate "operator" nearby, and the the to to force Honeywell of underground is 15 15 of 18 force outdated Barrett Dig Safely main. to refusing Plaintiff a legal force and locate and inaccurate also complains proceeding with obligation under to Under main. is facility required its by with underground operator NY's Barrett main. had the the first main. object mark an duty of owed main, under location on predicated force operator force the is the Barrett locate that an this of failing of as providing location complains to regulation, the duties breached second Honeywell operator represent Honeywell and against and its accurately misstated Plaintiff NYCRR to that Honeywell owner Honeywell, and which claim negligence notified make that a reasonable this an 16 [*FILED: 16] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 to attempt work the with RECEIVED NYSCEF: 10/20/2020 inform area the been has Honeywell that underground NYCRR of the leachate as The from to was it with legitimate issue statute. Dept. 1987). unlike the 1978 The case, not were subsequently main at information the is any drawings did drawings by Honeywell and Plant. Thus, Plaintiff and treated Honeywell did to raise (6); terms the convey failed has an not within to only agrees §760(4) provided were Metro the where had on the of to and the be force that cause fact of not any raised utility's main as was of to struck. was information the 16 16 of 18 the AD2d was main, and Honeywell they, of the depth locate drawings of the the the that provided to (2d inaccurate. allegations location sufficient 827 provision force the enforce as location Plaintiff's location accurate 131 Honeywell's by to distinguishable are the available Edison, Plaintiff Despite the action Consolidated where Plaintiff. identify the by v. cases question to private Contr. involve verified it no is relied accurately point that to Orlando cases instant contract used statute there N.A. Nor was GBL See statute. materials was main force the Court of fact. of Moreover, one-call or services one-call and The designated. 15' within located facility otherwise one-call the property the or operator in defined Honeywell comply an not main force underground any marked No 753-1.2(v). statute. that staked, facility 16 fail excavator the force the only force main. [*FILED: 17] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 Barrett's the to RECEIVED NYSCEF: 10/20/2020 failure part of to its face contract the any project, was other a party to Honeywell party. Based Plaintiff's claim Complaint the and to against Honeywell. contract say in motion for failed not no on states the 1978 to entitled did judgment is cannot no in role Plaintiff the to Barrett stop located had Barrett is summary relative drawing to being duty when Honeywell fact rather Honeywell or what on Plaintiff. main owed of that but Honeywell force and foregoing, its that negligence any where a survey the of question drawing on provided result valid any based the no had on not despite any the a 2009 allegation drilling negligence not been Plaintiff's with proceeding had not raised of was data which was Plaintiff provision profile drawings support has subsequent that main force Nor Finally, from the Honeywell. Honeywell's on locate or the any anything. dismissal of GRANTED. hereby CONCLUSION: To recapitulate: Defendant GRANTED; Drilling's County of motion for summary judgment is and Defendant GRANTED; Buffalo Onondaga's motion for summary judgment and Defendant Honeywell's motion for 17 17 of 18 summary judgment is is [*FILED: 18] ONONDAGA COUNTY CLERK 10/20/2020 11:54 AM INDEX NO. 2017EF1235 NYSCEF DOC. NO. 263 RECEIVED NYSCEF: 10/20/2020 GRANTED; for Paving main and and remains will AND IT motions The Counterclaim the in an Court The costs and claim active SO dismiss of damages it rendering contact IS to the counsel was schedule not in a subject Trial Date a conference Plaintiff against Honeywell by GRANTED. are Honeywell incurred a scheduled to crosselaims Defendant operational with various of the repairing these of March in this motions 15, Barrett and 2021. matter. ORDERED. ENTER: ANTHON JUSTICE DATED: October Syracuse, , 2020. New York 18 18 of 18 OF SUPR . 2 M IS E force COURT The

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