Warren Bros. v. New York State Thruway Authority

Herlihy, P. J.

(concurring). The claim must be dismissed because of the failure of the claimant to establish that it had any right to assume that there would be no rock in the area of its excavation in excess of six inches in size. The claimant introduced testimony to the effect that it had relied upon general Public Works specifications of 1947 in assuming that it would not encounter rocks ranging in size in excess of six inches and, therefore, it bid the job upon the assumption that it could utilize an excavating machine which would handle rock six inches or smaller in size. However, it does not appear that these specifications would necessarily have been followed in the original construction of the Thruway and it appears that the claimant made no investigation to determine whether or not the general specifications had in fact been imposed and followed throughout the area in which the claimant was to excavate. The record establishes that an inspection of the highway shoulders would have revealed their true condition had not such inspection of the proposed work site been confined to driving along the area in an automobile. The claimant having failed to demon-state an actual misrepresentation by the State as to the boulders which might be in the shoulder and having failed to demonstrate that it was entitled to rely upon the 1947 specifications, the claim must be dismissed.

It should be observed that a great portion of the delay in completing this contract could be attributed to the failure of the claimant to commence work until May 21, 1965, and to adverse weather conditions at various times during the project. Furthermore, the damage alleged by the claimant is necessarily dependent upon the amount of rocks encountered which were over six inches in size and the claimant failed to keep any record as to such rocks and did not even offer an estimate of the quantity of such rocks. Its estimate of damages as attributed by the trial court is to a large extent conjectural and based upon assumptions not having support in the present record (cf. Peckham Road Co. v. State of New York, 32 A D 2d 139, 143).

In sum, when considered in its entirety, the record does not support the findings of the Court of Claims.

Herlihy, P. J., Reynolds, Staley, Jr., and Sweeney, JJ., concur with Cooke, J.; Herlihy, P. J., in a separate opinion in which Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.

Judgment reversed, on the law and the facts, and claim dismissed without costs.