Ocean Mar. Dev. Corp v National Salvage & Serv. Corp NY Slip Op 51328(U) Supreme Court, Suffolk County. Pines, J.

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1 [*1] Ocean Mar. Dev. Corp v National Salvage & Serv. Corp NY Slip Op 51328(U) Decided on August 21, 2015 Supreme Court, Suffolk County Pines, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on August 21, 2015 Supreme Court, Suffolk County Ocean Marine Development Corp, Plaintiff, against National Salvage and Service Corporation, The State of New York and New York State Office of Parks, Recreation and Historical Preservation, Defendants / /16

2 Lawrence K. Katz, Esq. Attorney for Plaintiff Jeffrey A. Lhuillier, Esq. Kushnick Pallaci PLLC Attorneys for Defendant National Salvage Lori L. Pack, Esq. Assistant Attorney General State of New York Office of the Attorney General Emily Pines, J. In this action, the corporate Plaintiff and Defendant have sued each other for breach of a construction contract; and Plaintiff has named the State of New York and one of its agencies as a Defendant lien holder based upon Plaintiff's filing of a mechanics' lien on a project in which the State Department of Parks and Recreation was the owner of the subject property. A trial was held on June 29 and July 1 2, Trial Testimony Joseph Griffin, the owner and President of Plaintiff Ocean Marine Development Corp. ("Ocean Marine"), testified that his company, which specializes in marine construction, has been doing business for approximately 25 years. In December 2012, he received a telephone request from a representative of Defendant, National Salvage and Service Corporation ("National Salvage"), stating that it needed a subcontractor on a job to aid in the reconstruction of a boat ramp. At the time, National Salvage was the general contractor for the New York State [*2]Department of Parks and Recreation, providing demolition and cleanup services in Kings Park at an over 500 acre site for 2/16

3 approximately $6.4 million. Griffin set forth that he explained to National Salvage's project manager on this portion of the project, Michael Rothrock, that he would need first to construct a cofferdam to protect an enclosed area, which then could be utilized to pour stone and concrete. Griffin stated that his company has engaged in projects over the years involving cofferdam construction and that his contracts have ranged in price from $100,000 to $3.5 million. He stated that in 95% of the cases steel sheeting is utilized to form the walls of the cofferdam; however, he has utilized vinyl sheeting in several cases; and even where he has done so, he has not experienced a single failure from use of vinyl. According to Griffin, the job he envisioned and for which he submitted various proposals, involved several stages including procuring materials such as sheeting, stone and concrete; driving of the sheeting, installation of whalers (which are placed horizontally to provide the cofferdam with strength); digging out the underwater ground; placing paper over the remaining dirt; placing of stone; installing rebars to hold down concrete; pouring concrete and ultimately pulling out the sheets. The job would also allegedly require equipment such as an excavator, a truck and vibratory hammer in addition to the multiple materials. He claimed that he informed Mr. Rothrock that the job would take approximately 4 6 weeks. In an dated January 22, 2013, Griffin provided National Salvage price quotes for completing the job utilizing two different types of steel and vinyl sheeting (Plaintiff's 2). According to Griffin, it was Rothrock who asked for a quote using vinyl due to the significant difference in price between the use of steel and vinyl to provide the sheeting. He averred that it was Rothrock, and not he, who chose the vinyl alternative and who told him that the State had approved the same. In his examination before trial Mr Rothrock stated as follows: "After discussions on site about the materials to use, we then requested the vinyl sheeting submittal. And, upon receiving that, I submitted the vinyl sheeting to the State for approval for use on site. Once, approved, that got relayed back to proceed forward." 3/16

4 After being then asked "[i]s it fair to state that the decision was made by National Salvage with the approval and agreement of the state, as opposed to the decision making process being made by Mr. Griffin?". Mr Rothrock responded: "With the approval and agreement of the state, yes." (Court's 2 at p 26). In another from a National Salvage employee around this same period in January 2013, Hima Elwady wrote to Michael Rothrock that the subcontractor had said that vinyl sheeting was more that adequate and then goes on to state: "[t]he price differential is substantial so it's definitely in our interest to push for vinyl if we are also confident that it will not compromise the project." (Defendant's B). Griffin averred that he told Mr. Rothrock that with the choice of vinyl sheeting being made by Defendant, he would be required to work around the tides by dewatering only at certain [*3]times of the day because the vinyl would not hold up and withstand the water pressure against high tides which occurred two times each day. This was also confirmed in the EBT testimony of Rothrock ( Court's 2; Rothrock at p 27) as well as in January s from Griffin (Plaintiff's 2). According to Griffin, after sending his price quotes and having discussions with Rothrock, he awaited a written contract from National Salvage, which is evidenced by his s to National Salvage in February 2013 (Plaintiff's 4 and 5). However, the witness stated that he never received a contract; rather, Defendant provided him with a purchase order (Plaintiff's 5). The purchase order contained the lower bid he had made for use of the vinyl sheeting at $102,537 plus the amount of $12,375 which was extra work requested by Defendant for installation of poles on which to set the floating docks, for a total price of $114,912. The witness demonstrated that the purchase order had no specifications, no dates for completion, and no payment schedule. He anticipated, as previously set forth, that the job would take approximately 4 6 weeks. He stated that he never received any specifications nor any contract documents between the State of New York and National Salvage nor was he provided any information concerning when his job was required to be completed. Mr Griffin also testified that Rothrock told him to provide an invoice for 4/16

5 the entire job, and that he would then be given a check for his costs of mobilization and material (start up costs). He allegedly did so (Plaintiff's 7) in an invoice dated March 1, 2013, which also included his estimate for labor over a four week period. However, he asserted that no payment ever came. Mr. Griffin set forth that he kept records of his workers' time and also material purchases, which are contained within Plaintiff's 23 and 28. In addition, he provided Ocean Marine's certified payroll directly attributable to the work performed by four workers, including himself, on the subject job for a three week period (Plaintiff's 26). According to the witness, although he did work during a fourth week specifically excavation and digging, he did not keep daily logs for the week of March 28 as he was working alone during that period. The witness did admit that although he submitted certified payroll records for his employees, he did not do so with regard to his time working solo on the project. The witness stated that although he worked for the four week period and his employees for a three week period, he received no pay and was becoming financially strapped as he was required, under union rules, to pay his workers both their hourly rates and to cover the cost of their benefits. The witness claimed that he found from the beginning that he had to perform extra work, not contemplated in the purchase order, which states that he was required to remove 50 yards of fill (Plaintiff's 6), and that he actually dug out over 5000 cubic yards of the same. In addition to the extra fill, he found that there was substantial material underground including blocks, concrete, and steel pipes. He set forth that all of the same took a substantial period of time. He took photographs of the materials (Plaintiff's 9,10, 12). He testified that before March 28, despite all of the delays both in getting him any sort of contract and in performing the extra digging and dealing with the underground materials, the [*4]cofferdam was in tact and he was ready to proceed with the remaining work. A photograph taken while he and his employees were still on the job (Plaintiff's 14) shows both the cofferdam in place and his workers installing the whalers around its interior. He stated that he saw Bart Karsh, the Defendant's superintendent on the entire job, approximately fifteen to twenty minutes at 5/16

6 the beginning of most days and that as of March 25, 2013, Karsh had expressed no complaints with respect to any of the work he had performed. He referred to a discussion that he had with Bart Karsh on March 27, 2013 where Karsh told him for the first time that the project had to be completed within one week. He assertedly told Karsh such was impossible both because of the extra digging that had been required and because of the need to limit dewatering to the lower tide periods due to the Defendant's choice of the vinyl sheeting. He set forth that he worked on the project on March 28, 2013, and planned to return with his entire work crew on April 1 to complete the job as quickly as possible. According to Griffin, he and his workers and equipment returned at 7 a.m. on April 1, 2013 and he was told by Karsh that he had to leave the job. He and his crew removed their equipment and materials. He noticed that a clearly brand new pump was in the process of dewatering the site and that the sheeting he had installed had collapsed on the north corner. He, therefore, photographed the new excavator, as well as the evidence of the collapsed sheeting allegedly on the morning of April 1 (Plaintiff's 17, 18, 19, 20, 21). Griffin testified that the collapse of the sheeting had occurred while his crew was not present and while the Defendant had taken over the project dewatering the site for 24 hours per day and not ceasing the same, as he had advised, during high tides. The witness provided National Salvage's Daily Construction Reports (Plaintiff's 25) which demonstrate that Defendant was dewatering the site during the March 29 through April 1 period where the collapse occurred (Plaintiff's 25). The witness further supported his statement by the Daily Construction Report from the State which set forth: "Barge: Ocean Marine removed equipment and materials. NSSC continued stabilizing and dewatering area however suffered a sheeting failure and partial collapse. NSSC to remove and replace vinyl sheets with steel." (Plaintiff's 25). In his EBT testimony, Bart Karsh stated that during the period of time when National Salvage was dewatering the site, it left the pump on for 24 hours a day without supervision, his feeling being that none was necessary. ( Court's 2; Karsh EBT at p 49). 6/16

7 According to Griffin, when he was told to leave the site, he was given the false excuse that a subject DEC permit had expired; however, he claims to have later seen the subject permit and it had, in fact, not expired. In addition, he asserted that he never attended nor was asked to attend any meeting with the State and that based on the time and materials expended he is entitled to the full $114,912 set forth in his purchase order. The witness based this testimony on his purchase of materials as well as extra time expended due to the described delays on the job, when balanced with the time that he did not work due to the inability to complete the project. He set forth that he had, for example, purchased and installed the sheeting; removed 5000 cubic yards of dirt; installed piles at the bottom; however, he had not installed the papering on the ground, the rebar nor the stone or the concrete. With regard to the $12,375 change order, the [*5]witness set forth that he had purchased the piles yet not installed the same. When asked during cross examination why his March 1 bill to Defendant was for the lower amount of $91,736.16, he testified that such was created by him to show what would cover his labor and materials, but that it did not cover benefits. After he actually performed certain work and was removed from the jobsite, however, he did file a mechanics' lien with the State, in the amount of $85, (Plaintiff's 30). When asked about this lower amount during cross examination, Griffin stated that such did not include the 20% profit on the job which he expected and to which he believed he was entitled. Griffin also acknowledged receipt of a letter from National Salvage dated April 15, 2013, which demanded that he notify his insurer of the failure of the sheet pile he installed and stated that National Salvage estimated that Ocean Marine had finished only 25% of the project (Defendant's H). Victoria Schopp, the President of National Salvage, testified that her company contracted with the New York State Department of Parks and Recreation in June of 2012 to perform a construction project over a one year period. The total contract was in the amount of $6,378,000 and included the demolition of 19 structures, as well as the construction of a marina with a floating docks. She stated that on average, she had between 8 and 15 employees on the site; that the general supervisor was Bart Karsh, who hired subcontractors and interfaced with the State; and that Jim McNitt actually supervised most of the work. However, it was her belief that Bart Karsh supervised the boat 7/16

8 ramp work that is the subject of this litigation. Ms. Schopp set forth that she was familiar with the work to be accomplished at the boat ramp site and described it as: removal of a minor amount of matter; installation of a cofferdam; providing a grading plan for a boat ramp; and installing 2 floating docks. She testified that the work was required to be completed by June 2013 because State permits did not allow work on the site in any year between April 1 and September 30. She had originally hoped to have work begin in the beginning of October, 2012; however Hurricane Sandy apparently delayed the ability to hire a subcontractor for the work. As a result, Defendant only began its search for a subcontractor in December 2012 and reached out to Ocean Marine. Plaintiff provided a quote in January 2013 by . She referred to an from Ocean Marine to National Salvage dated January , which provided quotes for the work utilizing three types of sheeting, (Defendant's C). She stated that she asked for the vinyl due to the lower price but that her company did not design the cofferdam and that the State approved it. Once National Salvage issued the purchase order (Defendant's A), she set forth that Plaintiff began delaying the job and that rather than beginning in February, Ocean Marine did not start work until March 1. She testified that during the period that Plaintiff worked on the project, it provided limited work hours, and inadequate equipment (such as an improperly sized excavator). She acknowledged the extra dirt that had to be removed but stated that her company provided assistance during such period. On March 25, 2013, the witness stated that she received the $91, invoice from Ocean Marine and believed that Plaintiff was overreaching. In her view, the invoice overstated the amount for labor based on the certified payroll; it asked for too much for material, including that for which no work had yet begun, and overstated equipment [*6]costs. Ms. Schopp authorized the April 15 response in which she set forth that although Plaintiff was seeking payment for 80% of the work, its total entitlement would have been $28,728, representing 25% of the work accomplished (Defendant's H). She also stated that Plaintiff was entitled to no payment due to the failure of the sheeting and demanded that Ocean Marine notify its insurance carrier of the sheeting failure. According to the witness, Bart Karsh told her on March 27, 2013, before any sheeting failure, that Ocean 8/16

9 Marine did not intend to complete its work on the project and would pull its equipment from the site. After the Plaintiff left, she averred that National Salvage was required to retain another subcontractor on an emergency basis, and that the cofferdam had to be reconstructed, this time with the use of steel sheeting. The Defendant aided the subcontractor in providing labor and materials costing Defendant in excess of $300,000. Her summary of the total cost to reconstruct the cofferdam, obtain the materials, provide labor and pay the outside contractor for the same on an emergency basis, when added to her company's overhead and profit amounted to a total of $628, She provided a summary of her corporation's costs (Defendant's R) and copies of invoices and cancelled checks (Defendant's S). She set forth that National Salvage is seeking this sum in its counterclaim against Ocean Marine, which she states is responsible for the failure of the cofferdam. During cross examination, Ms. Schopp stated that her company had no design engineer on staff for this job and did not consult one with regard to the design of the cofferdam. She also admitted that Defendant's S, which contains the contract with the substitute subcontractor, which has specific requirements including a "time of the essence" clause, was not provided to Ocean Marine. She stated that she did not believe it was a requirement that her company hire a design engineer and that it did so only when it was required by contract. She believes that it was Plaintiff's responsibility to design the project properly. Bart Karsh testified that he is an employee of National Salvage and acted as supervisor on the Nissequogue River project, interfacing between the subcontractors and his own workforce. He also stated that he interfaced with the State. He averred that after Ocean Marine began its work on March 1, 2013, it caused delays due to inadequate equipment (such as the inadequate excavator that he claims had to be replaced by a larger one belonging to Defendant), and Plaintiff's failure to show up at various times without providing an explanation. He claims that Defendant took over the job before the sheeting failure because Plaintiff simply was not on the site. According to Mr. Karsh, the sheeting failure occurred in the afternoon of April 1. He took photographs of the site at the time (Defendant's J.K,L,M). Mr. Karsh stated that upon the failure of the cofferdam, a new subcontractor was hired and 9/16

10 completed the project with the added labor of National Salvage workers, in approximately 6 7 weeks. During cross examination, Karsh stated that he never notified Plaintiff that he was taking over the dewatering at the site inside the cofferdam and that before the collapse, he had dewatered the site on a 24 hour basis for a couple of days. He was shown Plaintiff's 24, National Salvage's Daily Report, which states that Defendant began its dewatering process on March 28, [*7]2013. However, the witness stated that noone at Ocean Marine told him that dewatering had to be done only at low tides. He did admit that it was his decision to dewater the site when National Salvage took over the job. It is Karsh's belief that the failure of the vinyl sheeting occurred in the afternoon, not the morning of April 1. James McNitt testified that he has been a superintendent for National Salvage projects since He has, during this time, supervised the building of cofferdams, although he does not consider himself an expert in the installation process. He was the superintendent of the entire Nissequogue project for the Defendant. He set forth that the Plaintiff had problems from the beginning of its work, including the manner in which it initially installed the sheet piling and the inadequacy of its excavator. He stated that Plaintiff left the job some time at the end of March/beginning of April 2013; that his company retained a new subcontractor and that National Salvage assisted in the work, including all of the dewatering. It took 6 8 weeks, according to the witness, to complete the job. During cross examination, McNitt stated that he visited the cofferdam site during the period Plaintiff was on the job, but that he would go there after 5 p.m. and never met any of the Ocean Marine workers. Defendant's expert engineer, John Peirce, testified as to extensive experience in the design and construction of cofferdams. The Court notes that the Defendant failed to provide Plaintiff with appropriate notice under CPLR 3101(d), providing its notice on the Friday before the trial was to commence. The Court granted the Defendant's application to preclude such testimony in part by providing Plaintiff's counsel with the opportunity to depose the witness and to delay his trial testimony for a one month period in addition to requiring Plaintiff to pay attorneys' fees 10/16

11 in connection with the deposition. Plaintiff's counsel chose to proceed with the trial as scheduled and to allow examination of the expert witness in accordance with the CPLR 3101(d) statement. Such statement was, as per the Court's understanding, to be limited to describing the witness' intended testimony to concern the adequacy of vinyl sheet piling at the subject site. However, it also set forth that the proposed witness had visited the site. Based upon the lateness of the disclosure, the limitations on the subject matter, and the fact that during his testimony, the witness set forth that he had not visited the site, this Court grants the application of Plaintiff's counsel to strike such testimony to the extent that it will consider only those portions of the expert's testimony that dealt with the use of the vinyl sheet piling in this project. To that end, the witness set forth that he has designed cofferdams only with the use of steel or aluminum. He did review construction photographs of the subject site and came to the conclusion that the use of vinyl sheet pile was extremely inadequate for this job and destined to failure. He set forth that the depth of the river water produced loads much greater than that which vinyl sheet piling could retain. He also stated that the actual length of the vinyl sheet piling was inadequate as the top of such sheet piling should always be a minium of 2 feet higher than the expected high tide. During cross examination, the witness stated that he did not know how long the vinyl sheet piling had stood without problem but he set forth that it would not surprise him if it had done so for the period between March 20 and April 1. The witness also stated that vinyl can be [*8]utilized where it is in a more shallow depth. The witness stated that he had not been informed that Plaintiff intended to dewater during low tides and did state that the worst time to perform the same was during high tide. He also stated that if dewatering was kept running at a 24 hour rate, and there occurred little water inside the cofferdam and water up to a level of 8 feet outside the cofferdam, the construction would be likely to collapse. He did state, however, that if it had been properly designed, even if dewatered on a 24 hour basis, it would not have collapsed. Joseph Griffin provided rebuttal testimony in which he stated that he never received any specifications for the subcontracting job. In addition, he set forth that any statement that Defendant helped him excavate the extra dirt was 11/16

12 false and that Defendant's alleged excavation work concerned a different part of the project. With regard to the March 1, 2013 invoice, he set forth that he delivered it much earlier than Victoria Schopp stated she received it and that when he gave it to Bart Karsh, he was told it would be taken care of. He set forth that he never informed Defendant that he was leaving the job in late March and that he arrived on April 1 with pumps, trucks of stone and workers. He testified that he would have completed the job on or about April 9. With regard to his costs, Griffin stated that his certified payroll contained in Plaintiff's 26 accurately depicts his labor costs but that it does not set his expenses which include the cost of benefits to which his union workers and he were entitled. Although Michael Rothrock was initially presented to Plaintiff's counsel as the sole fact witness on Defendant's witness list, Defendant elected not to call him. Plaintiff's counsel objected to this change at the beginning of the trial along with his arguments concerning the expert witness' testimony. Discussion In order to demonstrate that a contract has been breached, the complainant has the burden of demonstrating the following: 1) the existence of a contract between the parties; 2) performance by the claimant; 3) the other party's failure to perform the same; and 4) resulting damage, Palmetto Partners, L.P. V AJW Qualified Partners, LLC, 83 AD3d 804 (2d Dep't 2011); JP Morgan Chase v J.H. Elec of New York, Inc., 69 AD3d 802 (2d Dep't 2010); Furia v Furia, 116 AD2d 694 (2d Dep't 1986). A contract may consist of writings or documents if the writings refer to the fact that they are to be read in conjunction with the written contract, Perl v Smith Barney, Inc., 230 AD2d 664 (1st Dep't 1996). 12/16

13 It is a basic tenet of contract law that a contract should be construed in accordance with the intent of the parties, the best evidence of which is that stated in their written contract, Schron v Troutman Sanders, LLP, 20 NY3d 430 (2013); Goldman v White Plains Center for Nursing Care, LLC, 11 NY3d 173 (2008). However, where an agreement is considered by the court to be ambiguous, extrinsic evidence is permissible to aid the trier of fact in construction, including affidavits, sworn testimony and parties' conduct after the signing of the agreement and [*9]can be significant evidence of the parties' intent, Wolfson v Faraci Lange, LLP, 103 AD3d 1272 (4th Dep't 2013). In the context of construing a contract's meaning, where a party to an agreement seeks to make time of the essence unilaterally, such party must provide reasonable and sufficient notice to the other party that: a) is clear, distinct and unequivocal; b) fixes a reasonable time within which to perform; and c) informs the other party that nonperformance by the designated date will constitute a default, Zev v Merman, 134 AD2d 455 (2d Dep't 1987), aff'd, 73 NY 781 (1988); Nehmadi v Davis, 63 AD3d 1125 (2d Dep't 2009). The parties' contract herein consists of a purchase order (Plaintiff's 6). While the document contains an extremely brief list of stages of work in terms such as "Mobilization/Demobilization Equipment;" "Purchase, Install, Remove Sheeting on 3 Sides;" "Dewatering of Cofferdam;" "Install 3 of ramp;" "Install Paper/Stone/Rebar;" it provides a total price for the project and the extra work involving the purchase and installation of the extra piles; is dated February 14, 2013, and it contains no schedule nor any indication whatsoever that there is either a start time, a contemplated end date, nor that time is of the essence. When read in conjunction with the s predating the purchase order, it is clear that sheet piling was to be used and the price set forth for construction of the same is that provided by Griffin for the vinyl alternative. There is also no indication that any State permits required that work be accomplished during a certain season or time period. Based on Griffin's testimony, which the Court finds credible on this issue, there was simply no indication to Ocean Marine that its work was to be completed by the end of March as Defendant asserts. This is further supported by the fact that there is 13/16

14 nothing in writing from any of Defendant's employees until March 27 that Plaintiff was to finish the job in days. Both parties admit that the cofferdam structure failed on April 1, Each blames the other for the failure. While there appears to be a dispute as to whether the sheeting failed in the morning or the afternoon, the Court accepts the Plaintiff's assertion that such had already occurred in the morning of April 1, when Plaintiff's crew arrived based upon the photographs placed into evidence (Plaintiff's 17 and Defendant's M), indicating the sun location. However, most significant in this case, in the Court's opinion, is which entity chose the vinyl sheeting and why it failed. In cases, whether before a court or a jury as the trier of fact, an adverse inference may be drawn if a party fails to "[c]all a witness who would normally be expected to support that party's version of events" Adam K. v Iverson, 110 AD3d 168 (2d Dep't 2013). In this case, there is no question that Griffin's daily contact with National Salvage was through Michael Rothrock, who himself testified that he worked on a daily basis with Griffin on this job. That witness was the one who involved himself in both the discussions of what the job would entail as well as how it was to be accomplished. The Court believes that he was a significant witness of the events; that such is clear from his testimony at his EBT; and finds that Defendant's failure to call him as a trial witness, especially after indicating that he would be called, provides a basis for drawing an adverse inference. However, even if the Court were not to [*10]do so, Rothrock's EBT testimony clearly supports Griffin's statements that it was National Salvage and not Ocean Marine, which chose the vinyl sheet piling for the subject project and which was responsible for this choice, concerned only with the approval of the State Department of Parks and Recreation, which it obtained. This finding is significant because the Court believes that it was the vinyl siding which, when accompanied by the unsupervised dewatering, ultimately caused the failure. The Court also finds, based upon the pre contract s (Plaintiff's 2) as well as Rothrock's EBT testimony (Court's 2), that Griffin told Defendant that dewatering was to occur at low tides. The contemporaneous Daily Reports of the State as well as the EBT testimony of Bart Karsh demonstrate that Defendant conducted the 24 hour dewatering over several days. It is also clear from Griffin's 14/16

15 testimony, not contradicted by any other witness, and indeed accepted by Karsh in his EBT testimony, that the cofferdam with the vinyl siding was in tact for at least four days while Plaintiff was conducting its low tide dewatering process before Defendant took over the job. The Court finds credible the limited portion of testimony of the expert witness that this Court considered that vinyl was the worst choice of material for the job but believes that such decision lay at the hands of the Defendant rather than the Plaintiff in this case. There is no question that: 1) the parties had an agreement that Plaintiff would purchase the materials and provide the equipment and labor as set forth in the subject purchase order; 2) Plaintiff performed such work up to the last week of March 2013; 3) Defendant had no basis, supported by the findings set forth above, to terminate such agreement by removing Plaintiff from the jobsite; and, 4) therefore, Defendant breached the contract. As Plaintiff received no payment for the work performed it has suffered monetary damages as a result of the breach. In a breach arising from a construction contract, the claiming contractor has the burden of proving the extent of the harm suffered, J.R. Loftus, Inc v White, 85 NY2d 874 (1995). If performance has begun and the contractor sues for breach of contract, the contractor is entitled to recover the amount due for the work completed at the contract rate and may also include an amount for lost profits on the uncompleted portion of the work see, Aqua Dredge Inc v Stony Point Marina and Yacht Club, Inc, 183 AD2d 1055 (3d Dep't 1992). However, the Plaintiff need not, in such situation, demonstrate damages with mathematical certainty, id. In this case, Plaintiff submitted his mechanics' lien which he testified credibly was derived from the cost of material equipment and labor expended based on the purchase order as well as extra work he credibly performed as a result of the removal of ten times the material set forth in his contract. While Plaintiff's counsel provides the Court with a method to determine the amount of profit lost on the work remaining, this was not really presented to the Court at trial and it is difficult, at best, to calculate what real percentage of the job remained as of the termination of 15/16

16 Ocean Marine. Based thereon, the Court finds that Plaintiff is entitled to damages from Defendant for breach of the parties' construction contract in the amount of $85,836.16, such claim having accrued on April 1, 2013, the date Plaintiff removed Defendant from the project. Defendant/Counterclaimant's claim for breach of contract is, accordingly, dismissed in its entirety. Finally, the Court has received notice form the Office of the State Attorney General, which is holding an amount in excess of the mechanics' lien filed by Ocean Marine, requesting that the parties execute all necessary paperwork required by the New York State Comptroller's Office as a prerequisite to receiving any money from the State. This request is granted and should, therefore, be contained within any Judgment submitted. This constitutes the Decision and Order of the Court. Settle Judgment on Notice. Dated: Riverhead, New York August 21, 2015 Hon. Emily Pines, J.S.C. Return to Decision List 16/16

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