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JOHNSON v. STATE NEW YORK (04/03/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


April 3, 1969

JOHNSON, DRAKE & PIPER, INC., APPELLANT,
v.
STATE OF NEW YORK, RESPONDENT

Appeal from part of judgment of Court of Claims dismissing certain causes of action.

Del Vecchio, J. P., March, Gabrielli, Bastow and Henry, JJ.

Memorandum: Claimant established the claim as set forth in the second cause of action for $28,008.51 representing a balance due claimant for extra and additional work performed in the installation of finger type expansion dams on the elevated roadway structure and damage to wooden forms and structural steel caused by construction traffic during an extended period of delay in the completion of the construction work not resulting from any fault of the claimant. The State did not offer any proof to establish as a setoff any saving to the claimant resulting from the elimination of the necessity for the claimant's making a final adjustment in the grade level of the expansion dams or a reasonable method of estimating such saving. As to the claim set forth in the third cause of action, the Field Change drawing issued by the State required 1/4 inch nominal steel or aluminum shims under each rail post on the roadway structure. The requirement of 1/4 inch of various thicknesses of shims per each post set the maximum amount of shims claimant was required to install, and it is therefore entitled to recover its claim for $9,587.90 for aluminum shims used to adjust the handrail along both sides of the structures in excess of the contract requirements and labor in installing them. Finally, claimant is entitled to interest on the severed portion of its claim from the date of tender of final payment October 29, 1962 to the date of entry of judgment March 7, 1963. (See Terry Contr. v. State of New York, 28 A.D.2d 638, mod. 23 N.Y.2d 167; Higgins & Sons v. State of New York, 27 A.D.2d 638, mod. 20 N.Y.2d 425.)

Disposition

Judgment insofar as appealed from unanimously modified on the law and facts in accordance with the Memorandum herein, and as so modified affirmed, with costs to appellant.

19690403

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