Public Constructors, Inc. v. State

55 A.D.2d 368, 390 N.Y.S.2d 481, 1977 N.Y. App. Div. LEXIS 9985
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 20, 1977
DocketCLaim No. 52054
StatusPublished
Cited by11 cases

This text of 55 A.D.2d 368 (Public Constructors, Inc. v. State) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Public Constructors, Inc. v. State, 55 A.D.2d 368, 390 N.Y.S.2d 481, 1977 N.Y. App. Div. LEXIS 9985 (N.Y. Ct. App. 1977).

Opinion

Greenblott, J.

This is an appeal by the State from an award in favor of the claimant in the amount of $1,988,527.04 (on the second through sixth and ninth causes of action), plus interest. Claimant and the State entered into a highway construction contract dated November 10, 1965 for the construction of a portion of the new Route 17 in Delaware County. The contract provided for the construction of 5.68 miles of main road, 7.72 miles of access road and four bridge structures. The contract plans were formally approved and accepted by appropriate State officers on September 21, 1965. The contract was advertised for bids in early October, 1965, and final bids were received during the latter part of that same month. Claimant as low bidder was awarded the contract on November 10, 1965 and began work on or about December 20, 1965. The amount of claimant’s bid was $11,856,562.50. The contract was accepted as complete by the State on January 15, 1969. Claimant thereafter filed a timely claim asserting nine causes of action based on alleged breaches of contract by the State, This appeal involves causes of action two, three, four, five and nine. (The awards in the first and sixth causes of action are not challenged.) The elements underlying the second cause of action attributed by claimant to the State are, inter alia, as follows: material changes and alterations in the nature, quality and extent of work; numerous changes in design of the work and consequent delays in preparation of the plans; furnishing inadequate and misleading information to bidders which failed [370]*370to fairly represent the conditions at the site; negligence in the preparation of the design of the project; knowingly witholding relevant information concerning conditions at the contract site; unreasonable delay in approving shop drawings and in making necessary decisions.

The basic element underlying claimant’s allegations relate to its contention that wet subsurface soil conditions completely disrupted its excavation and embankment operations, and that when deep cuts were made, fill areas were not sufficiently extensive to permit the placing of excavated material in required thickness of layers to dry out, and therefore when excavated material was wet, claimant was compelled to cease operations, resulting in extensive delays. Liability is said to attach to the State because in disclosing information to bidders as to soil conditions on the site, the State is alleged to have provided incorrect and misleading information indicating that subsurface soil consisted primarily of coarse grained material which has the capacity to shed moisture, whereas in fact the subsurface soil consisted primarily of fine grained materials lacking the capacity to permit compaction in moist conditions, and that conditions of excessive moisture were present which the State failed to disclose. The effect of encountering these unanticipated conditions was to require claimant to increase the scope and number of drainage structures and to change its earth work operations and alter procedures and plans for construction in light of the embankment problems which it encountered which were not envisioned or disclosed by the contract documents. The State takes the position that adequate information was provided in the material furnished to bidders, and that claimant itself must bear the responsibility for not being aware of the conditions because of its failure to conduct adequate prebid, on site investigations. It is further claimed that the State is excused from liability by virtue of a provision in the contract advising bidders that they were not entitled to rely upon the accuracy of descriptions of subsurface conditions contained in bidding documents.

. The Court of Claims fixed liability upon the State, and we concur in rejecting the State’s aforementioned contentions. Dealing first with the alleged exculpatory provisions in the contract, it is pertinent that the provision in the public works specifications of January 2, 1962 applicable to this contract specifically provided as to borings that the "information is [371]*371made available to the bidder only in order that the bidder may have access to the identical information available to the Department.” The record establishes however that identical information was not in fact made available to bidders.

In 1952 and 1953, many years prior to the letting of this contract the State began subsurface soil explorations along the contract site by retaining private contractors to make test borings. The findings of these contractors were transcribed into boring logs and forwarded to the State’s Soils Bureau in Albany. The Albany, bureau also made its own on site investigations in 1952, and in 1956, seismic tests were conducted on the site. In 1962, the State through its Binghamton field office of the Department of Public Works resumed further on site soils explorations; these being mainly the taking of 145 test borings. Analyses of these test borings were prepared by the unskilled field workers and compiled. (This compilation is referred to as the "Binghamton borings”.) At the same time samples were inspected by skilled technicians at the Albany Soils Bureau in 1963 whose findings were written up and became known as the Albany laboratory logs. The essence of the credible testimony, leading to findings of the trial court with which we concur as being supported by a preponderance of the evidence leads to the conclusion that the 1952-1953 borings and the Albany laboratory logs which were not released to claimants or to the engineers charged with designing the project, presented a considerably different picture of the contract site than did the Binghamton field borings, which, in addition to presenting information tending to indicate far fewer problems, appear to have been prepared by untrained staff members who failed to comply with the State’s own specifications for recording the information.

It would serve no useful purpose for this court to further elaborate upon the conflicting contentions of the parties regarding the question of whether or not the Binghamton borings were misleading, and whether substantial and extensive changes in the method of construction resulting in delays were caused by the fact that claimant ultimately encountered conditions far different than those which it had been led to anticipate. On these questions, we are of the view that the findings of fact of the Court of Claims are substantially supported by the record and should be affirmed and we refer to the decision of said court for a more detailed discussion of the facts.

[372]*372The applicable law, in our view, clearly supports a determination fixing liability upon the State. In A. S. Wikstrom, Inc. v State of New York (52 AD2d 658, 660), we said: "In Rusciano Constr. Corp. v State of New York (37 AD2d 745, 746, mod 37 AD2d 789), one of the questions involved the State’s failure to make available all soil testing information and to provide in the contract plans for the possibilities of unstable subsurface material which contributed to a delay in completing the project. We held that 'the exculpatory clauses in the contract

and in the invitations to bid do not insulate the State from liability where the conditions are not as represented in the contract and inspection by the contractor would not reveal the representations to be false.’ In County Asphalt v State of New York (40 AD2d 26) we applied this reasoning. Additionally, in Warren Bros. Co. v New York State Thruway Auth.

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Bluebook (online)
55 A.D.2d 368, 390 N.Y.S.2d 481, 1977 N.Y. App. Div. LEXIS 9985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-constructors-inc-v-state-nyappdiv-1977.