Opinion
12-13-2016
In re LAWS CONSTRUCTION CORP., Petitioner–Appellant, v. The CONTRACT DISPUTE RESOLUTION BOARD, et al., Respondents–Respondents. General Contractors Association of New York, Inc., Amicus Curiae. In re Laws Construction Corp., Petitioner–Appellant, v. Contract Dispute Resolution Board, et al., Respondents–Respondents.
Rich, Intelisano & Katz, LLP, New York (Daniel E. Katz of counsel), for appellant. Tynia Richard, New York, for the Contract Dispute Resolution Board of the City of New York, respondent. Zachary W. Carter, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for City of New York (Department of Parks and Recreation), respondent. McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Mark A. Rosen of counsel), for amicus curiae.
Rich, Intelisano & Katz, LLP, New York (Daniel E. Katz of counsel), for appellant.
Tynia Richard, New York, for the Contract Dispute Resolution Board of the City of New York, respondent.
Zachary W. Carter, Corporation Counsel, New York (Jeremy W. Shweder of counsel), for City of New York (Department of Parks and Recreation), respondent.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York (Mark A. Rosen of counsel), for amicus curiae.
TOM. J.P., FRIEDMAN, SAXE, FEINMAN, KAHN, JJ.
Order and judgment (one paper), Supreme Court, New York County (Ellen M. Coin, J.), entered February 16, 2016, denying the petition seeking to annul a determination of respondent Contract Dispute Resolution Board (CDRB), dated January 14, 2015, which denied petitioner's claim seeking damages in connection with a construction project, and dismissing the proceeding brought pursuant to article 78, unanimously affirmed, without costs. Order and judgment (one paper), same court and Justice, entered on or about July 8, 2015, denying the petition seeking to annul CDRB's determination, dated May 28, 2014, which denied another claim seeking damages in connection with the project, and dismissing the proceeding brought pursuant to article 78, unanimously affirmed, without costs.
CDRB's determinations that petitioner waived its claims had a rational basis (see generally Matter of Beck–Nichols v. Bianco, 20 N.Y.3d 540, 559, 964 N.Y.S.2d 456, 987 N.E.2d 233 [2013] ). The contract governing the construction project required any request for an extension of time filed by petitioner to include a statement, "in detail," that petitioner "waives all claims except for those delineated in the application, and the particulars of any claims which [petitioner] does not agree to waive." CDRB rationally found that the claims at issue in both proceedings were not set forth with sufficient particularity in the broadly worded list of reserved claims in petitioner's sixth extension request (see Mars Assoc. v. City of New York, 70 A.D.2d 839, 418 N.Y.S.2d 27 [1st Dept.1979], affd. 53 N.Y.2d 627, 438 N.Y.S.2d 779, 420 N.E.2d 971 [1981] ).
Petitioner's reliance on the parties' course of conduct as to petitioner's previous five extension requests is precluded by the contractual provision stating that the City of New York and its agents may not be estopped by any decision made by the City's agents, as well as the general "unavailability of estoppel against governmental entities" (Matter of Parkview Assoc. v. City of New York, 71 N.Y.2d 274, 279, 525 N.Y.S.2d 176, 519 N.E.2d 1372 [1988], appeal dismissed & cert. denied 488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9 [1988] ).
In any event, CDRB rationally determined that petitioner's claim that its replacement of contaminated cover layer materials was made more costly by changes to the design of the golf course under construction, which had occurred during the delay in procuring the materials, was not an extra work claim but a delay damages claim precluded by the no-damages-for-delay clause in the contract (see Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 313, 502 N.Y.S.2d 681, 493 N.E.2d 905 [1986] ; Commercial Elec. Contrs., Inc. v. Pavarini Constr. Co., Inc., 50 A.D.3d 316, 317–318, 856 N.Y.S.2d 46 [1st Dept.2008] ).
Petitioner's claim of agency bias is unpreserved and, in any event, unavailing in the absence of any "proof that the outcome flowed from" any alleged bias (Matter of Warder v. Board of Regents of Univ. of State of N.Y., 53 N.Y.2d 186, 197, 440 N.Y.S.2d 875, 423 N.E.2d 352 [1981], cert. denied 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 [1981] ).
We have considered petitioner's remaining arguments for affirmative relief and find them unavailing.