(Download) "Matter Fehlhaber Corporation and Horn Construction Co. v. A. C. O'Hara" by Supreme Court of New York " Book PDF Kindle ePub Free
eBook details
- Title: Matter Fehlhaber Corporation and Horn Construction Co. v. A. C. O'Hara
- Author : Supreme Court of New York
- Release Date : January 10, 1976
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 76 KB
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[53 A.D.2d 746 Page 746] Appeal from a judgment of the Supreme Court at Special Term, entered August 28, 1975 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, ordering appellants to pay petitioner the balance of requisition CPFF 78, Rev. 2. Petitioner entered into a contract with the State on June 23, 1966 for the construction of the Main Platform Foundation at the South Mall in Albany, New York. Thereafter, the original contract was modified by an agreement of October 1, 1968 which terminated the unit price provisions and converted the balance of the contract work to a cost-plus-fixed-fee basis (CPFF). After the contract was again modified and after petitioner had substantially completed the construction, by mutual agreement the contract as modified was terminated as of April 13, 1971. On this appeal, appellants concede that thereafter the parties agreed that there was due petitioner on the main platform contract the sum of $1,234,356.90. In August, 1973 the Commissioner of the Office of General Services prepared a memorandum of understanding which set forth the substance of the verbal settlement agreement with requisition attached, but the Attorney-General declined to approve it. In December, 1974, petitioner submitted a proposed final payment certificate CPFF 78, Rev. 2 with release attached. This release recited that in consideration of $1,234,356.90, petitioner released the State to the extent of $826,640.75 to be paid forthwith, and reserved all rights for the balance of $407,716.15. On February 28, 1975 the State paid petitioner $826,640.75, less bond adjustments. On March 18, 1975, petitioner demanded the State pay the balance of $407,716.15. Upon the State's refusal to pay, petitioner commenced this article 78 proceeding. Special Term found that allegations in the petition were not denied and that appellants' answer raised only objections in point of law that had no merit and entered the judgment appealed from which directed appellants to pay petitioner the sum of $407,716.15, with interest thereon from March 1, 1973 to date of payment and to pay interest on the sum of $826,640.75 from March 1, 1973 to February 28, 1975, the date partial payment was made. On this appeal appellants claim that (1) Special Term had no jurisdiction in this proceeding pursuant to CPLR article 78 to grant a judgment which in effect directs the payment of money by the State of New York, (2) appellants were entitled to set off against moneys admitted to be due petitioner claims of the State of New York against petitioner arising from a separate and distinct contract between the State and petitioner, (3) it was error to allow interest on $826,640.75 from any date and (4) it was error to allow interest on $407,716.15 from March 1, 1973. We hold that Special Term had jurisdiction to entertain this proceeding to determine whether appellants failed to perform a duty enjoined upon them by law (CPLR 7803, subd 1). An article 78 proceeding in the nature of mandamus is an appropriate remedy to compel performance of a statutory duty that is ministerial in nature but not one in respect to which an officer may exercise judgment or discretion' (Matter of Posner v. Levitt, 37 A.D.2d 331, 332) unless such judgment or discretion has been abused by arbitrary or illegal action (People ex rel. Lodes v. Department of Health of City of N. Y., 189 N. Y. 187, 194). Mandamus will be granted only when a clear legal right thereto is demonstrated (Matter of Small v. Moss, 277 N. Y. 501, 507; 23 Carmody-Wait 2d, New York Practice, § 145:97, p 573), and the judgment in [53 A.D.2d 746 Page 747]