Plato Gen. Constr. Corp../Emco Tech Constr. Corp.. v. Dormitory Auth. of State

89 A.D.3d 819

932 N.Y.S.2d 504

2011 N.Y. Slip Op. 08134

PLATO GENERAL CONSTRUCTION CORP./EMCO TECH CONSTRUCTION CORP., JV, LLC, respondent-appellant,

v.DORMITORY AUTHORITY OF STATE of New York, appellant-respondent, et al.;additional counterclaim defendants (and another title).

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2011.

Holland & Knight LLP, New York, N.Y. (Frederick R. Rohn, Timothy B. Froessel, and Adam J. Paterno of counsel), for appellant-respondent.Georgoulis & Associates PLLC, New York, N.Y. (Chris Georgoulis of counsel), for respondent-appellant.MARK C. DILLON, J.P., RUTH C. BALKIN, RANDALL T. ENG, and JEFFREY A. COHEN, JJ.

In an action to recover damages for breach of contract, the defendant appeals from (1) a judgment of the Supreme Court, Kings County (Demarest, J.), entered June 10, 2010, which, upon a decision dated May 20, 2010, made after a nonjury trial, is in favor of the plaintiff and against it in the principal sum of $10,106,698, with interest thereon from March 30, 2005, representing an award in favor of the plaintiff in the sum of $10,285,698 on the complaint minus a setoff award in favor of the defendant in the sum of only $179,000 on the counterclaim, (2) an order of the same court dated October 15, 2010, which granted the plaintiff's motion, denominated as one for reargument, but which was, in effect, pursuant to CPLR 4404(b) to set aside so much of the decision dated May 20, 2010, as awarded the plaintiff prejudgment interest from March 30, 2005, and, upon setting aside that part of the decision, determined that the plaintiff was entitled to prejudgment interest from December 31, 2002, and (3) an amended judgment of the same court entered October 25, 2010, which, upon the order dated October 15, 2010, in effect, is in favor of the plaintiff and against it in the principal sum of $10,106,698, representing an award in favor of the plaintiff in the sum of $10,285,698 on the complaint minus a setoff award in favor of the defendant in the sum of only $179,000 on the counterclaim, with interest thereon from December 31, 2002, and the plaintiff cross-appeals, on the ground of inadequacy, from the same amended judgment. The notice of cross appeal from the judgment entered June 10, 2010, is treated as a premature notice of cross appeal from the amended judgment entered October 25, 2010 ( see CPLR 5520[c] ).

ORDERED that the appeal from the judgment entered June 10, 2010, is dismissed, on the ground that the judgment entered June 10, 2010, was superseded by the amended judgment entered October 25, 2010; and it is further,

ORDERED that the appeal from the order dated October 15, 2010, is dismissed; and it is further,

ORDERED that the amended judgment entered October 25, 2010, is reversed, on the law and the facts, the judgment entered June 10, 2010, and the order dated October 15, 2010, are vacated, the complaint is dismissed, the defendant is awarded the principal sum of $179,000 on its counterclaim, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the amount of prejudgment interest to be awarded on the counterclaim, and thereafter for entry of an appropriate judgment; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from the intermediate order dated October 15, 2010, must be dismissed because the right of direct appeal therefrom terminated with the entry of the amended judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the amended judgment ( see CPLR 5501[a][1] ).

The plaintiff commenced this action to recover damages for delays in the construction of the Brooklyn College Library, which involved the gut renovation of two existing buildings and construction of an addition. The defendant, Dormitory Authority of the State of New York (hereinafter DASNY), as agent for the owner, City University of New York (hereinafter CUNY), entered into a contract with Turner Construction Company (hereinafter Turner), which is not a party to this action, whereby Turner agreed to act as construction manager, “[e]xpedite and coordinate the work of all Contractors,” and prepare a schedule for the project.

On May 20, 1999, DASNY entered into a contract with the plaintiff, Plato General Construction Corp./EMCO Tech Construction Corp. (hereinafter Plato), as prime general contractor, to perform general construction work for $19,902,000. The contract between DASNY and Plato set the date of completion as March 20, 2001, and required Plato to pay liquidated damages of $1,000 per day for “each and every day that [Plato] shall be in default after the above time of completion.”

Pursuant to the “General Requirements” of the contract, the owner's agent, DASNY, was required to provide a “Critical Path Method” (hereinafter CPM) schedule, but Plato was obligated to cooperate with Turner in the development, implementation, and updating of the CPM schedule. Section 13.01(A) of the “General Conditions” of the contract provided:

“During the progress of the Work, other contractors may be engaged in performing work. The Contractor [Plato] shall coordinate the Contractor's Work with the work of other contractors in such a manner as the Owner may direct.”

Section 11.02 of the “General Conditions” contained a no-damages-for-delay clause which stated:

“No claims for increased costs, charges, expenses or damages of any kind shall be made by the Contractor against the Owner for any delays or hindrances from any cause whatsoever; provided that the Owner, in the Owner's discretion, may compensate the Contractor for any said delays by extending the time for completion of the Work as specified in the Contract.”

Section 13.01(D) provided:

“Should the Contractor sustain any damage through any act or omission of any other contractor having a contract with the Owner or through any act or omission of any Subcontractor of said other contractor, the Contractor shall have no claim against the Owner for said damage.”

Section 20.15 provided that Plato could not cancel the contract based upon DASNY's breach thereof, and waived “any and all rights and remedies to which” Plato “might otherwise be or become entitled to because of any wrongful act or omission” of DASNY, except Plato's right to damages. Provisions were made in the contract for changes and extra work.

In May 1999 Turner provided a schedule to Plato. Plato was to review and make any necessary changes in the schedule. Plato provided its CPM schedule on June 10, 1999.

Delays in the project were attributed to a number of causes. Consolidated Edison Company (hereinafter Con Edison) was installing “chiller lines” to run alongside the site; installation was to take 30 days, but was not completed for six months, interfering with demolition and construction for at least some of that period. Although the contract provided that Plato would have “[c]omplete access to the site after June 1999,” the library was not completely vacated until October 5, 1999. The contract for heating, ventilation, and air conditioning (hereinafter HVAC) was not awarded until August 19, 1999, but the selected HVAC contractor, Precision Mechanical, Inc. (hereinafter Precision), was removed from the project on December 6, 1999, by mutual agreement, because it could not meet deadlines or provide a schedule for its portion of the project. Precision was replaced in January 2000 with Roy Kay, Inc. (hereinafter RKI).

RKI had to provide drawings redesigning the duct work system because the original design based upon DASNY's engineer's drawings was not sufficient to maintain sufficient airflow through the buildings and was not field-verified as to the height of existing beams. Plato claimed that the plans prepared by DASNY's architect were also defective for failing to identify all of the asbestos in the walls, resulting in additional asbestos abatement work which delayed demolition.

Completion of the project was delayed by Plato's failure to complete brickwork in a timely manner, as well as the fact that Plato's subcontractors would not or could not complete their work, requiring Plato to perform much of the interior finishing work itself. Occupancy of the library was not turned over to Brooklyn College until August 28, 2002, 526 days after the contract completion date of March 20, 2001.

Plato commenced this action on March 30, 2005, to recover, inter alia, $15,834.257.41. DASNY counterclaimed for liquidated damages of $1,000 per day for 411 days, constituting the period from the March 20, 2001, the date the project originally was to have been completed, until August 28, 2002, the date the project was substantially completed, less a 115–day extension of time granted by DASNY.

After a nonjury trial, the Supreme Court, in a written decision ( see Plato Gen. Constr. Corp. v. Dormitory Auth. of the State of N.Y., 27 Misc.3d 1226[A], 2010 N.Y. Slip Op. 50916[U], 2010 WL 2035273 [2010] ), determined that DASNY could not rely on the no-damages-for-delay clause in the contract, because DASNY had waived that clause. The Supreme Court found, inter alia, that DASNY breached the contract by failing to fulfill its duty of scheduling and coordination of the work, failing to have an HVAC contractor in place at the beginning of the project, failing to notify the other contractors of a redesign of the HVAC system, and failing to remove all books from the library, delaying full access to the site until October 1999. The Supreme Court found that uncontemplated delays were incurred, among other things, by Con Edison's excavation for the chiller line, and the fact that additional asbestos was found in the walls. However, the Supreme Court also found that Plato was responsible for some of the delay because of errors in masonry work, and the fact...