Quaker-Empire Construction Co. v. D. A. Collins Construction Co‪.‬

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered September 30, 1981 in Rensselaer County, upon a decision of the court at Trial Term (Pennock, J.), without a jury. Defendant D.A. Collins Construction Co., Inc. (Collins), was the principal contractor with the State of New York for construction of a portion of Interstate Route 90, under a contract requiring completion of the project by October 1, 1975. Collins entered into a subcontract with plaintiff for installation of guardrails, fences, bridge railings, signs, and similar items. Since most of the work plaintiff contracted to perform was contingent on prior completion of the grading and paving of the roadway and construction of the bridges, the main contracts work progress schedule provided for plaintiffs performance in the later stages of the project. The work schedule also excluded the winter months from the time during which plaintiffs performance was required. It is undisputed that the project did not progress as scheduled, with the result that the bulk of plaintiffs work could not begin until November, 1975, more than a month after the agreed upon date for completion of the highway. Moreover, most of plaintiffs performance took place during the winter months of 1975-1976, when weather conditions seriously impeded the work. After completion of the project and its acceptance by the State in 1976, plaintiff brought the instant action for payment of the balance due and other charges under the subcontract and for damages for breach of contract, alleging that the delay and resultant additional expense to plaintiff were caused by defendants nonperformance. The trial court awarded judgment in plaintiffs favor, and this appeal ensued. The record substantiates the trial courts disposition of the case. There was more than sufficient evidence to support its findings that Collins delay and faulty performance prevented timely and economical completion of plaintiffs work under its subcontract. Notably, the completion of paving, a precondition to much of plaintiffs performance, was delayed well into the late fall of 1975, and was attributable in large part to the failure of Collins to put in its own asphalt plant and to obtain timely State approval of its [88 A.D.2d 1043 Page 1044]