Johnson, Drake & Piper, Inc. v. State — 43 N.Y.2d 677

Majority

p. 677

Johnson, Drake & Piper, Incorporated, Appellant, v State of New York, Respondent.

(Claim No. 48874.)

Argued October 6, 1977;

decided November 15,1977

p. 678

APPEARANCES OF COUNSEL

Charles B. Molineaux, Jr., and Arthur Karger for appellant.

Louis J. Lefkowitz, Attorney-General (Richard J. Dorsey and Ruth Kessler Toch of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Appellant’s right, if any, to damages for claimed overruns in the pile foundation work and in consequence of claimed delays in the work depends on the determination of mixed questions of fact and law to be resolved on the basis of the evidentiary facts established and the inferences fairly to be drawn from such facts. The same is true with respect to the assertions of liability based on alleged misrepresentations of the State affecting the pile foundation work (including alleged bad faith on the part of the State) and as to the scope of cofferdam work. These issues were resolved, expressly or by necessary implication, in favor of the State by the Court of Claims and such resolutions were later affirmed at the Appellate Division. As such, there being evidence in the record for their support, they are now beyond the scope of our review. We agree with the Appellate Division that, in the light of the express qualifications on its use stated by the Trial Judge, the court was entitled to utilize the claim analysis prepared by the State’s project designer and consultant to the extent that it deemed justified in reaching its decision.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.