D'Angelo v. State

Herlihy, P. J.

(dissenting in part). While I agree with the majority as to the disposition of the third and fourth claims, I disagree with them as to the disposition of the fifth and sixth claims.

The fifth and sixth claims are for additional damages alleged to have been suffered by the claimant as a result of delay caused by the State. The completion date under the contract was December 1, 1967 and the record shows that the work by the claimant was substantially completed on December 20, 1967 and *82finally accepted by the State on January 29, 1968. With reference to damages the record shows a stipulation of some sort reducing the original demand from $296,988.75 to $153,330 but there is no suggestion that this was to be interpreted as an agreed amount due but was subject to further examination by the respective parties at the trial. The record substantiates the court’s finding that there was no sufficient proof to justify an award. It is noteworthy that the request to find by the claimants placed no reliance upon the so-called stipulation. The court’s finding as to these claims states:

“ The job was completed only nineteen days after the original agreed completion date, however, and even assuming that the State was responsible for the delays, the Claimant failed to present proof which would permit us to determine the loss which it sustained by reason thereof. We believe that it is incumbent upon one who claims to have been damaged to show how much the cost of doing the work was increased by the acts or failures to act of the other party. The General Specifications and Conditions of all public works contracts give clear notice that itemized statements of alleged damages for delays will be required. (Public Works Specifications of January, 2, 1962 [Claimant’s Exhibit 26] ‘ Alleged Claims ’ p. 72.)

“ The Claimant would have us assess damages in the amount by which its estimated actual costs plus allowances for overhead and profit exceeded the amount of its bid on various items. We do not believe this is a proper approach. * * *

“We believe that by failing to keep records when they so obviously would be necessary to prove damages, Claimant effectively forfeited its right to recover damages such as those demanded in the fifth and sixth claims. ’ ’

The record does not justify our interference with this factual finding by the court. The proof as to damages caused by delay should be readily discernible and subject to mathematical calculation based upon facts in the' record. This .is particularly so in the present instance where from the outset the claimant intended to assert a claim for such damages. To the extent that there was delay, some of it was necessarily attributable to the claimants upon this record. As noted by the State upon this appeal, the progress schedule would have indicated ample time to complete the box culverts even if all the delay were attributable to the State.. The facts in the present record have some similarity to Peckham Road Co. v. State of New York (32 A D 2d 139, affd. 28 N Y 2d 734).

Therefore, I would. affirm so much of the judgment as dismissed the fifth and sixth claims.