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EAST BAY CONTRACTING CO. v. STATE NEW YORK (12/09/68)

COURT OF CLAIMS OF NEW YORK Claim No. 49696 1968.NY.43769 <http://www.versuslaw.com>; 299 N.Y.S.2d 476; 59 Misc. 2d 216 December 9, 1968 EAST BAY CONTRACTING CO., INC., CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Max E. Greenberg, Trayman, Harris, Cantor, Reiss & Blasky (Sayward Mazur of counsel), for claimant. Louis J. Lefkowitz, Attorney-General (Marshall Cohen of counsel), for defendant. Alexander Del Giorno, J. Author: Del Giorno


Alexander Del Giorno, J.

Author: Del Giorno

 The State of New York has moved for an order of dismissal on the ground that the above-entitled claim has been released.

The claimant and the State entered into a contract on or about December 4, 1963, designated as Contract Nos. FICBE 63-3, CBE 63-4, and TNE 63-1, for the improvement of the Cross Bronx-Throg's Neck Expressway. Incorporated in said contract and constituting an integral part thereof were the provisions of the Public Works specifications of January 2, 1962. These specifications provide in pertinent part as follows:

"Acceptance of final payment. The acceptance by the Contractor, or by anyone claiming by or through him, of the final payment shall constitute and operate as a release to the State from any and all claims of any liability to the Contractor for anything theretofore done or furnished for or relating to or arising out of the work done thereunder, and for any prior act, neglect, or default on the part of the State or any of its officers, agents, or employees, excepting only a claim against the State for the amounts deducted or retained in accordance with the terms and provisions of the contract, and excepting a claim for delay or one arising from 'Disputed Work' as set forth in a preceding paragraph and filed in a signed statement form with the Superintendent.

"The Contractor is warned that the execution by him of a release in connection with the acceptance of the final payment, containing language purporting to reserve claims other than those herein specifically excepted, or for claims for amounts deducted by the Comptroller, shall not be effective to reserve such claims, notwithstanding anything stated to the contrary, orally or in writing by any officer, agent or employee of the State.

"Should the Contractor refuse to accept the final payment as tendered by the Comptroller, it shall constitute a waiver of any right to interest thereon."

Claimant entered upon and completed the performance of its contract and the work thereon was officially accepted by the State of New York on March 11, 1966. Thereafter, beginning in March and continuing until September 1966, claimant repeatedly asserted in writing its rights to additional payment under the contract.

Commencing on March 20, 1967, three different sets of final agreements were forwarded to claimant by the State, none of which were signed or returned by the claimant. Finally, on October 4, 1967, a check was received in claimant's office in the amount of $5,589.23. This is the check which the State claims is the final payment on the contract and which, having been deposited by claimant, has effectively released any claim it may have.

In its opposing papers, claimant has set forth a number of ameliorating factors which it contends remove this check from the release provision of the Public Works specifications regarding acceptance of final payment. First, the purported final payment check was not accompanied by any transmittal letter. Secondly, the check, when received, was indorsed by means of a rubber stamp and deposited by an employee of claimant's firm who had been employed in claimant's office for only two days. Finally, the only indication as to the nature of the check was contained on the check stub and read as follows:

"Check No. 1 213667 Z

State of New York

Detach Before Cashing Check

Department or ...


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