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BAST HATFIELD, INC., Plaintiff,
v.
JOSEPH R. WUNDERLICH, INC., Defendant (TDF, LLC Client)
STATE OF NEW YORK SUPREME COURT, COUNTY OF ALBANY
INDEX NO. 1933-04
March 2009

The Court credits the testimony of Wunderlich's expert, Thomas D. Fertitta, based upon his knowledge of construction and the critical path method of scheduling construction projects. Fertitta concluded that the primary causes of delay were late site demolition by the owner, Bast's delay in processing submittals and lack of coordination by Bast as evidenced by its failure to inform its subcontractors of the accelerated schedule. He determined that Wunderlich could not have completed its work any sooner regardless of manpower and, in any event, any delay in performance by Wunderlich did not delay completion of the project beyond the substantial and actual completion date.

Decision Affirmed.

78 A.D.3d 1270, 910 N.Y.S.2d 256 (N.Y. App. Div. 2010); App. Div LEXIS 7891
November 4, 2010, Decided
November 4, 2010, Entered

Supreme Court further found that Wunderlich was unable to complete its work more quickly as its performance was frustrated by obstacles attributable to Bast and Latham Circle and beyond Wunderlich's control... This determination was based, in part, on the testimony of Wunderlich's construction expert, who opined that Wunderlich was prevented from progressing more quickly by the delayed demolition, [*6] plan revisions required due to an initial error, and the failures of Bast to coordinate the sequencing and staging of the various subcontractors' work, maintain updated schedules, transmit timely submittals to the project engineer, and notify Wunderlich of the accelerated schedule. This expert further opined that Wunderlich would have timely completed its full scope of work under the subcontract had it not been partially terminated. We accord deference to the court's resolution of the conflict between this opinion and the contrary views of Bast's engineer (see R.W. Granger & Sons v City School Dist. of Albany, 296 AD2d 636, 636, 744 N.Y.S.2d 567 [2002]).


R.W.GRANGER & SONS INC., Respondent (TDF, LLC Client),
v.
CITY SCHOOL DISTRICT OF ALBANY, Appellant.
91195
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
2002 N.Y. App. Div. LEXIS 7116

Fertitta concluded that there was a 133-day delay on the project. He attributed 106 days to the School District, which was caused by the lack of coordination between the construction manager and the prime contractors and the lack of construction schedules – both of which caused M.E.P. work to frequently interfere with Granger’s work, untimely responses to request for proposals, and untimely responses to requests for information. Fertitta concluded that the 15-days of delay was caused solely by Granger, but that such a delay was neither substantial nor material to completion of the project.

Fertitta analyzed the work remaining as of termination and concluded that Granger could have completed its work by the September 5, 1995 deadline...

Fertitta testified that the School District's decision to terminate Granger for delaying the project – without analyzing the underlying cause(s) for delay – was improper and, having failed to perform such an analysis, was not justified in terminating Granger for default.

Fertitta broke his analysis of the delays occurring on the project into windows of time. The analysis was based on the construction schedules that had been produced and his review of the correspondence, daily work reports, and the project meeting minutes that had been produced.

Decision Affirmed.

July 3, 2002, Decided
July 3, 2002, Entered

296 AD2d 636, 636, 744 N.Y.S.2d 567 [2002]

We affirm. The trial evidence and exhibits are far too voluminous for lengthy recitation here. However, plaintiff's expert engineer, Thomas Fertitta, testified that based upon his "critical path" analysis, the project was delayed for a total of 133 days. Of the 133 days, Fertitta attributed all but 15 days to defendant and its agents by reason of their failure to coordinate the work of the various prime contractors and to prepare adequate construction schedules. These failures, in turn, resulted in the mechanical, electrical and plumbing work interfering with plaintiff's work, thereby causing the complained of delay. Fertitta attributed only 15 days of the delay to plaintiff which, in his opinion, was neither substantial nor material to completion of the project. To be sure, there was contrary testimony on the part of defendant's expert, but this merely presented a credibility determination for the trial court to resolve, and its determination in this regard is entitled to deference due to its ability to observe the tenor and demeanor of the witnesses.

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