ROCKMORE CONTRACTING CORP v. CITY OF NEW YORK (2025)

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered on or about September 5, 2024, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the claims for delay damages related to extended field office costs, extended site overhead (ESO), and weather, unanimously modified, on the law, to reinstate plaintiff's claim for ESO damages incurred in connection with the services of its outside construction consultation and management firm, the matter remanded for further proceedings consistent herewith, and otherwise affirmed, without costs.

The court correctly dismissed plaintiff's claims for extended field office costs and certain of the ESO costs because its expert improperly used the bid amount in calculating those claims (see Five Star Elec. Corp. v. A.J. Pegno Constr. Co., Inc./Tully Constr. Co., Inc., 209 A.D.3d 464, 464, 175 N.Y.S.3d 63 [1st Dept. 2022]).  “It is well established that prebid estimates made by the contractor to compute a bid price are not a valid basis for computing recovery” (Najjar Indus., Inc. v. City of New York, 87 A.D.2d 329, 332, 451 N.Y.S.2d 410 [1st Dept. 1982], affd 68 N.Y.2d 943, 510 N.Y.S.2d 82, 502 N.E.2d 997 [1986]).

However, summary judgment should not have been granted as to one distinct category of ESO costs which plaintiff incurred in connection with project management services rendered by J.S. Held (JSH).  The costs incurred for JSH's services were not calculated based on bid estimates but rather are documented ESO costs that plaintiff incurred after its bid was accepted and which were unforeseeable at that time.  Issues of fact also exist as to whether delays on defendant's part caused plaintiff to require JSH's services and whether plaintiff waived its right to recover such costs under the terms of the parties' contract by failing to sufficiently document them.

The court also properly dismissed plaintiff's weather delay damages claim, which was excluded by the parties' construction contract and was not solely caused by defendant (see Henick–Lane, Inc. v. 616 First Ave. LLC, 214 A.D.3d 435, 436, 185 N.Y.S.3d 71 [1st Dept. 2023]).

The Decision and Order of this Court (238 A.D.3d 681, 234 N.Y.S.3d 60 [1st Dept. 2025]) entered herein on May 29, 2025 is hereby recalled and vacated (see M–4883, decided simultaneously herewith).